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L  STUDY  IN  STATE  RIGHTS 


o 


TO   THE  MEMORY   OF 

HON.   JOHN  W.  DANIEL 

"WHOSE    SPLENDID    SERVICES    FOR    CONSTITUTIONAL 

LIBERTY  ON   THE  BATTLEFIELD  AND  IN   THE 

HALLS  OF   CONGRESS  MAKE   HIM 

EMINENT  AMONG  VIRGINIANS 

PATRIOTIC  SONS. 


428030 


CONTENTS 


CHAPTER  PAGE 

I.  The  Rights  of  the  States  Undeb  the  Constitu- 
tion      11 

II.  The  Convention  of  1787 20 

III.  The  Purpose  of  the  Convention  of  1787    ...    41 

IV.  Distortions  of  the  History  of  the  Acts  of  the 

Convention 135 

V.  Fede:rals  vs.  Republicans 158 

VI.  The  Hartford  Convention 170 

VII.  Conclusion 214 


PREFACE 

I  was  not  a  soldier  in  the  war  between  the  States, 
nor  have  I  any  desire  to  keep  alive  any  spirit  of  ani- 
mosity between  the  northern  and  southern  sections  of 
the  United  States.  I  have  so  constantly  heard  my  peo- 
y)le  denonnced  as  "rebels"  and  "traitors" — as  "those 
who  conspired  to  break  up  the  Union,"  that  I  gave  my- 
self to  an  earnest  stndy  of  the  question :  Is  this  charge 
true — were  our  fathers  and  brothers  and  kinsmen 
snch  as  lias  been  written  in  the  so-called  histories  of 
the  day  ?  As  a  result  of  that  study,  my  conviction  is 
clonr  and  strong  that  the  accusation  of  treason  is 
vol  tr\ie:  on  the  contrary,  the  men  who  fought  under 
the  banner  and  leadership  of  Mr.  Jefferson  Davis 
were  the  men  who  fonirht  for  the  constitutional  prin- 
ciples given  us  by  the  founders  of  the  federal  govem- 
me^^\.  of  the  United  States.  I  have  "written  what  T 
linve  with  the  earnest  hope  that  our  young  men  of 
Yivfriiiin  and  of  the  South,  aye,  that  all  the  young 
men  throuirhout  all  the  States,  will  study  the  ques- 
tion with  more  carefulness,  and  more  thoroughly 
than  present  knowledge  of  the  facts  seems  to  indi- 
cate they  have  done,  and  come  to  know  the 
reasons  why  our  fathers  fousrht  so  obstinately  and 
suffered   the  loss  of  all  but  honor.     T  have  written 


10  PREFACE 

to  help  our  young  men  to  know  the  truth.  If  what 
I  have  written  is  not  true,  do  not  accept  it.  If  it  is 
true,  you  can  only  honor  the  memory  of  your  fathers 
by  yourselves  standing  for  the  truth  in  the  same 
spirit  in  which  they  stood.  If  by  this  effort  I  can 
help  in  the  least  to  make  plain  to  the  men  of  this 
generation  the  truth  about  the  causes  of  that  awful 
conflict  of  the  sixties,  I  shall  be  satisfied. 

J.  H.  M. 
Brookneal,  Va., 
October  11,  1911. 


A  Study  in  State  Rights 


CHAPTEK  I 

THE  EIGHTS  OF  THE  STATES  UNDER  THE  CONSTITUTION 

In  the  early  part  of  the  summer  of  1904  I  at- 
tended the  Memorial  Day  exercises  at  WinchesSter, 
Virginia,  where  was  present  a  large  gathering  of 
'•'the  old  soldiers"  who  had  fought  under  the  banner 
of  "the  Southern  Confederacy."  After  the  strewing 
of  the  flowers  and  the  delivering  of  the  oration,  by 
invitation  I  went  to  dine  with  a  company  of  gentle- 
men who  had  served  through  the  whole  war  in  the 
Army  of  Northern  Virginia.  Their  conversation 
was  given  up  almost  entirely  to  incidents  and  experi- 
ences of  their  campaigns.  After  indulging  for  a 
long  time  in  talk  reminiscent,  they  drifted  into  an 
argumentative  strain  to  show  that  the  South  was 
right  in  the  stand  she  had  taken  in  the  war  of  the 
States.  I  was  greatly  surprised  to  find  that  so  many 
of  them  had  studied  the  subject  with  the  great  care- 
fulness their  conversation  disclosed,  and  was  more 
surprised  to  discover  that  any  who  had  worn  the 
gray  never  doubted  the  righteousness  of  his  cause. 
Their  feelings  w^ere  in  strong  contrast  to  that  type 
of  man  who  all  his  life  lives  under  the  delusive 
idea    that    "nothing    succeeda    like    success,"    and 

11 


12  A.STIIDT  l^ 

believes  that  .  that, .  .w-hich .  does  ,  not  succeed  can- 
not be  rigii't,  becalisie  men"' -fail- •  somehow,  for  some 
reason  he  tacitly  accepts  the  conclusion  that  these 
men  are  wrong.  A  great  many  years  ago,  perhaps  as 
many  as  forty,  an  eminent  scholar  said  that  when 
the  question  of  the  issues  that  divided  the  States  is 
considered  and  studied  as  it  should  be,  in  the  light 
of  the  facts  of  history,  the  righteousness  of  the 
Southern  cause  will  be  accepted. 

The  facts  of  history  must  be  brought  out.  Did 
the  States  have  any  rights  ?  Did  they  merge  them- 
selves into  national  government  and  relinquish  all 
rights  ?  Did  they  retain  any  rights  under  the  gov- 
ernment organized  ?  Did  they  organize  a  gov^  ern- 
ment  over  the  States  or  between  the  States  ?  The 
The  answer  to  these  questions  is  found  in  the  facts 
of  the  history  of  the  beginning  of  our  government, 
and  nowhere  else.  If  the  government  was  over  the 
States  the  facts  in  the  history  of  the  making  of  the 
Government  ought  to  show  it.  If  it  was  a  govern- 
ment between  the  States,  the  facts  of  the  history  of 
the  beginning  of  the  Government  ought  to  be  plain 
and  conclusive.  It  is  to  study  such  questions  as 
these  that  we  invite  all  fair-minded  men  to  consider 
what  we  put  in  this  treatise,  viz.,  the  facts  of  the 
history  of  the  beginning  of  this  government,  and  then 
decide  who  was  right — the  men  who  contended  for 
the  rights  of  the  States,  or  the  men  who  contended 
that  the  States  had  no  such  rights,  and  that  all  the 
rights  were  merged  into  what  is  to-day  called  the 


STATE  RIGHTS  13 

N'ational    Government,   but  was   historically   called 
the  Federal  Government. 

"We  cannot  agree  with  the  eminent  gentleman  from. 
Massachusetts  (Mr.  Charles  Francis  Adams)  "that 
both  parties  were  right  in  this  controversy."  If  the 
gentleman  means  both  parties  thought  they  were 
right,  we  can  appreciate  his  declaration ;  bnt  to  say 
both  parties  in  a  contest  which  involved  snch  con- 
tradictions as  did  "the  late  unpleasantness,"  result- 
ing in  a  war  between  the  States,  were  right,  involves 
too  much  confusion  in  morals.  We  can  understand 
how  men  honest  in  their  convictions  can  differ:  but 
that  difference  shows  one  must  be  wrong,  or  both 
may  be  wrong,  when  they  do  not  agree  with  that 
which  they  consider  to  be  the  standard  of  right. 
What  is  the  meaning  of  men  claiming  to  be  honest 
when  they  do  things  on  convictions,  as  they  say, 
when  such  acts  are  contrary  to  the  standard  of  right 
they  acknowledge?  For  instance,  two  men  accept 
the  golden  rule  as  the  standard  of  their  conduct: 
"Do  unto  others  as  you  would  have  others  do  to 
you."  One  man  in  all  his  conduct  and  through  all 
his  relations  of  life  lives  as  directed  by  the  lit- 
eral and  simple  statement  of  the  rule.  The  other 
one  lives  and  acts  just  the  opposite  to  the  literal 
and  simple  statement  of  the  rule,  and  says  that 
his  understanding  of  the  rule  that  he  must  do  every- 
body for  his  own  upbuilding,  and  contends  for  this 
interpretation  of  the  rule  because  A  and  B,  who 
make  the  same  profession,  act  this  way. 


14  A  STUDY  IN" 

Shall  we  say  both  of  these  men  are  right?  It 
is  not  answering  the  question  to  say  that  they  both 
act  on  their  own  convictions  of  what  the  rule  means ; 
but  are  they  both  acting  on  the  simple  statement  of 
the  rule?  The  rule  is  the  standard,  not  what  they 
think  the  rule  means.  Wrong  is  the  opposite  of 
right.  And  the  dictum,  the  saying,  of  no  man  can 
ever  make  that  which  is  wrong  to  be  right.  This 
government  has  a  standard  called  a  Constitution. 
What  do  you  mean  by  that?  Why,  that  there  is  a 
written  document  prepared  by  a  convention  of  men 
chosen  for  the  purpose,  and  that  this  document  is 
the  standard,  the  rule,  the  fundamental  law  of  gov- 
ernment. An  account  of  how  these"~men  became 
members  of  this  convention;  upon  whose  authority 
they  acted,  and  how  what  they  did,  as  they  sat  in 
the  convention,  became  the  supreme  law  for  the 
States,  are  questions  which  must  be  answered  from 
the  facts  of  the  origin  of  that  convention,  of  the 
working  of  that  convention,  and  how  the  results  of 
the  doing  of  that  convention  became  law. 

It  is  a  fact  known  from  the  history  of  each  State 
that  the  men  who  composed  the  convention  which 
met  in  Philadelphia  in  May,  1Y87,  and  adjourned  in 
September  of  the  same  year,  were  sent  to  Philadel- 
phia by  the  action  and  authority  of  each  of  the  States 
sending  them.  They  were  enrolled  as  members  from 
their  respective  States,  and  as  members  of  their 
States  proposed,  discussed,  and  adopted  what  are 
known  as  seven  articles  of  the  Constitution.    Through 


STATE  RIGHTS  15 

the  Congress  of  the  United  States  sitting  and  act- 
ing under  "the  Articles  of  Confederation"  they  sent 
the  Constitution  to  the  legislatures  of  the  thirteen 
States,  by  them  (i.  e.,  the  legislatures  of  the  States) 
to  be  submitted  to  a  convention  of  oommissioners 
elected  by  the  people  in  each  State,  for  approval  or 
rejection.  The  language  in  which  these  men  record 
the  conclusion  of  their, vs^ork  shows  us  on  whose 
authority  they  acted  and  for  whose  benefit  what  they 
did  was  done:  "Done  in  convention  by  the  unani- 
mous consent  of  the  States  present"  (not  done  by 
the  people,  nor  for  the  people,  but  by  the  unanimous 
consent  of  the  States  present),  "the  seventeenth  day 
of  September,  in  the  year  of  our  Lord  one  thousand, 
seventeen  hundred  and  eighty-seven." 

Article  VII  of  the  Constitution  settles  beyond 
all  question  the  kind  of  government  proposed  by 
this  instrument  when  it  says:  "The  ratification  of 
the  conventions  of  nine  States  shall  be  sufficient  for 
the  establishment  of  this  Constitution  between  the 
States  so  ratifying  the  same."  (See  Constitution, 
Art.  VII.)  It  does  not  say  over  the  States,  it  does 
not  say  in  place  of  the  States,  but  between  the  States. 
Article  X,  which  was  one  of  the  amendments  adopted 
according  to  the  provisions  made  for  amending  the 
Constitution,  plainly  recognizes  the  existence  of  the 
States  and  recognizes  all  their  original  rights.  It 
reads:  "The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to 
the  States,  are  reserved  to  the  States  respectively, 


16  A  STUDY  IN 

or  to  the  people."  If  the  States  were  merged  into 
a  national  government,  why  reserve  any  rights  to 
that  which  no  longer  exists  ?  If  they,  the  States,  no 
longer  have  any  separate  existence,  why  reserved  for 
them  any  such  rights  as  prescribed  in  this  article  ? 

If  the  States  are  merged  into  that  which  is  to  be 
known  as  the  ^National  Government,  which  super- 
sedes the  States  in  all  things,  and  is  over  all  things 
concerning  the  States,  so  that  the  only  rights  left 
to  the  States  is  unquestioned  obedience  to  the 
National  Government,  why  should  the  government 
be  designated  as  that  between  States,  when  States, 
as  individual  commonwealths,  no  longer  exist?  It 
is  to  any  candid  and  earnest  student  the  marvel  of  his- 
tory that  any  man  who  is  in  the  least  familiar  with 
the  facts  of  the  calling  of  the  convention  of  1787, 
who  had  ever  read  the  record  of  the  results  of  the 
action  of  that  convention,  should  ever  question  the 
fact  of  the  rights  of  the  States  in  the  government  of 
the  United  States.  Yet  the  student  will  find,  written 
as  history,  such  statements  as  this:  "It  has  some- 
times been  said  that  the  Union  was  in  its  origin  a 
league  of  sovereign  States,  each  of  which  surrendered 
a  specific  portion  of  its  sovereignty  to  the  Federal 
Government  for  the  sake  of  the  common  welfare. 
Grave  political  arguments  have  been  based  upon  this 
alleged  fact;  but  such  account  of  the  matter  is  not 
historically  true.  There  never  was  a  time  when 
Massachussetts  or  Virginia  was  an  absolutely 
sovereign  State  like  Holland  or  France."     (Critical 


STATE  RIGHTS  17 

Period  of  American  History,  John  Fiske,  p.  90.) 
The  same  author  in  the  same  treatise  says  (p.  344)  : 
"Could  a  State  once  adopt  the  Constitution  and 
then  withdraw  from  the  Union  if  not  satisfied? 
Madison's  reply  was  prompt  and  decisive.  No  such 
a  thing  could  ever  be  done.  A  State  which  had  once 
ratified  was  in  the  Federal  bond  forever.  The  Con- 
stitution could  not  provide  for  nor  contemplate  its 
owTi  overthrow.  There  could  be  no  such  thing  as  a 
constitutional  right  of  secession." 

Mr.  John  Fiske  is  regarded  as  authority  on  mat- 
ters of  history.  We  will  have  to  examine  this  in 
the  light  of  the  record  given  us  by  those  who  tell 
us  of  the  beginning  of  the  Government  and  see  how 
far  this  declaration  conforms  to  the  facts  of  true 
history.  Just  here  we  want  to  call  your  attention 
to  some  other  things  written  as  history,  or  as  ex- 
plaining history.  Mr.  Motley,  a  man  distinguished 
among  his  countrymen  for  learning,  has  written  in 
Rebellion  Record,  vol.  i,  p.  211:  "It  [the  Con- 
stitution] was  not  a  compact.  Whoever  heard  of  a 
compact  to  which  there  are  no  parties?  The  Con- 
stitution was  not  drawn  up  by  the  States;  it  was 
not  promulgated  in  the  name  of  the  States ;  it  was 
not  ratified  by  the  States.  The  States  never  acceded 
to  it  and  possess  no  power  to  secede  from  it.  It 
was  ordained  and  established  over  the  States  by  a 
power  superior  to  the  States, — ^by  the  people  of  the 
whole  land  in  their  aggregate  capacity  acting  through 
conventions  of  delegates,  expressly  chosen   for  the 


18  A  STUDY  IN 

purpose  witHin  each  State,  independently  of  the 
State  government  after  the  project  had  been  framed." 

If  this  is  a  statement  of  a  fact  of  history,  then 
there  exists  no  such  thing  as  States  having  any  rights. 
But  we  shall  test  this  contention  by  the  facts  of  the 
history  of  the  convention  which  gave  us  the  Constitu- 
tion and  by  the  statements  of  prominent  individual 
members  of  that  body  known  as  the  convention  of  1787. 

The  greatest  marvel  of  all  things  written  as  the 
historical  facts  about  the  Constitution  of  the  United 
States  is  that  written  by  Mr.  Justice  Story.  Mr. 
Story  was  a  lawyer,  a  judge.  We  have  therefore 
nothing  to  expect  from  him  but  that  which  is  abso- 
lute truth.  Why  he  should  write  as  history  that 
which  he  must  have  known  was  not  history  we  are 
not  called  upon  to  explain.  But  that  he  did  write 
as  history  that  which  the  record  in  the  case  shows 
is  not  history  we  must  and  will  show.  Mr,  Webster 
studied  with  great  zeal  and  diligence  Mr.  Story's 
theory  of  the  Constitution,  and  so  enlarged  upon 
it  with  that  splendid  eloquence  for  which  he  was 
justly  famed,  that  people  all  over  this  country,  if 
not  in  other  countries,  accepted  Webster's  interpreta- 
tion as  the  true  meaning  of  the  form  of  government 
inaugurated  by  the  convention  of  1787.  We  do  not 
feel  called  upon  here  to  explain  why  Mr.  Webster 
acted  and  spoke  as  he  did  in  this  matter.  This  much 
we  can  say,  if  he  did  not  know  what  he  said  could 
not  be  reconciled  with  the  record  in  the  case,  he 
sinned  in  what  he  said.     If  he  did  know  that  what 


STATE  EIGHTS  19 

he  declared  to  be  the  meaning  of  the  Constitution 
could  not  be  verified  by  the  facts  of  the  history  of 
the  making  of  the  Constitution,  it  is  putting  it 
mildly  to  say  he  the  more  cgregiously  sinned ;  that 
it  was  unworthy  of  one  who  enjoyed  the  reputation 
for  statesmanship  that  the  distinguished  Senator 
from  Massachiisetts  did,  to  ignore  the  facts  in  the 
case  and  resort  to  the  chicanery  of  the  politician  to 
gain  his  end.  We  shall  show  from  the  facts  of  bis 
life  that  "Webster  renounced  the  position  he  assumed 
in  this  matter,  and  left  his  testimony,  at  the  cost 
of  his  popularity  and  his  position,  to  the  true  nature 
of  the  government  of  the  United  States. 

It  was  said  by  an  English  critic  that  "Milton  is 
more  praised  than  read."  We  submit  the  same  criti- 
cism applies  to  the  Constitution  of  the  United  States 
when  men  like  Fiske,  Motley,  Story,  and  Webster 
wrote  and  spoke  of  the  meaning  of  the  Constitution 
of  this  government  as  they  did.  Too  many  have 
adopted  the  habit  of  praising;  too  few  have  gone  to 
the  thing  itself. 

The  only  way  to  show  the  errors  in  a  case  is  to 
produce  the  records  of  the  facts  in  the  case.  The 
first  record  in  the  case  in  hand  is  the  history  of  the 
assembly  knoAvn  as  the  convention  of  1787.  Who 
constituted  this  convention  ?  What  constituted  mem- 
bership in  this  body  ?  How  did  the  results  of  the 
work  of  the  convention  become  law?  In  the  next 
chapter  we  purpose  to  set  forth  the  record  of  this 
historical  meeting,  and  its  record. 


A  STUDY  IN 


CHAPTEE  II 

THE  CONVENTION  OF  1787 

How  was  the  convention  of  1787  originated? 
Upon  whose  authority  did  it  meet,  and  by  whose 
authority  did  the  plan  of  government  proj^osed  by 
it  become  operative?  Did  the  simple  setting  fort£ 
of  a  form  of  government  by  that  convention  make 
that  form  of  government  the  law  of  the  land,  irre- 
spective of  any  action  on  the  part  of  the  States? 

On  the  fifteenth  day  of  November,  1777,  "Arti- 
cles of  Confederation  and  Perpetual  Union"  were 
adopted  by  the  delegates,  in  congress  aissembled,  of 
New  Hampshire,  Massachusetts  Bay,  Rhode  Island 
and  Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and 
Georgia.  Under  the  plan  of  government  therein 
provided  for,  known  as  the  Government  of  "The 
United  States,"  the  War  of  the  Eevolution  was  con- 
ducted, and  finished,  when  five  commissioners  from 
the  British  Government  and  five  from  the  Govern- 
ment of  the  United  States  met  at  Paris,  November 
30,  1782,  and  signed  a  provisional  treaty  of  peace. 
A  final  treaty  was  sisrned  at  the  same  place  Septem- 
Her  3,  1783.     This  treaty  begins  with  these  worfls: 

20 


STATE  RIGHTS  21 

"His  Britannic  Majesty  acknowledges  the  said 
United  States  [naming  each  StateJ,  viz.,  New 
Hampshire,  Massachusetts  Bay,  Rhode  Island  and 
Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  to  be  free,  sovereign,  and  independent  States ; 
that  he  treats  them  as  such,  and  for  himself,  his 
heirs,  and  successors,  relinquishes  all  claim  to  the 
government,  proprietary  and  territorial  rights  of  the 
same,  and  every  part  thereof."  In  this  his  Britannic 
Majesty  means  to  say  that  he  grants  to  the  States 
herein  mentioned  that  for  which  they  were  con- 
federated to  accomplish — ^their  separate  and  distinct 
independence.  If  this  was  not  the  case,  why  were 
the  States  mentioned  by  name,  and  why  was  it  stipu- 
lated in  the  terms  of  the  treaty  that  each  one  by 
name  should  be  considered  free,  sovereign,  and  inde- 
pendent States  ?  Several  years  after  peace  was  estab- 
lished it  was  discovered  that  the  United  States  Gov- 
ernment did  not  have  the  authority  to  raise  revenue 
and  meet  all  the  exigencies  of  the  cases  that  came  up 
for  the  consideration  of  CongTess.  Repeated  efforts 
were  put  forth  to  get  the  States  in  their  sovereign 
capacity  act  upon  these  considerations.  They  all 
failed.  The  Virginia  legislature,  January  21,  1786, 
resolved  "that  Edmund  Randolph,  James  Madison, 
Jun.,  Walter  Jones,  St.  George  Tucker,  Meriwether 
Smith,  David  Ross,  William  Ronald  and  George 
!^Iason,  Esquires,  be  appointed  commissioners,  who, 


22  A  STUDY  IN 

or  any  five  of  whom,  shall  meet  such  commissioners 
as  may  be  appointed  by  other  States  in  the  Union, 
at  a  time  and  place  to  be  agreed  on,  to  take  into  con- 
sideration the  trade  of  the  United  States ;  to  examine 
the  relative  situation  and  trade  of  the  said  States; 
to  consider  how  far  a  uniform  system  in  their  com- 
mercial regulations  may  be  necessary  to  their  com- 
mon interest  and  their  permanent  harmony ;  and  to 
report  to  the  several  States  such  an  act  relative  to 
this  great  object,  as,  when  unanimously  ratified  by 
them,  will  enable  the  United  States  in  Congress  as- 
sembled, to  provide  for  the  same;  that  the  said  com- 
missioners shall  immediately  transmit  to  the  several 
States  copies  of  the  preceding  resolution  with  a  circu- 
lar letter  requesting  their  concurrence  therein,  and 
proposing  a  time  and  place  for  the  meeting  afore- 
said."    (Elliott's  Debates,  vol.  i,  p.  115.) 

Four  States  responded  to  this  invitation  of  Vir- 
ginia, namely,  ISTew  York,  J^ew  Jersey,  Pennsyl- 
vania, and  Delaware.  The  commissioners  of  these 
States  met  at  Annapolis,  Md.,  September  11,  1786. 
They  did  nothing  but  make  a  report  to  the  legisla- 
tures appointing  them,  and  recommend  the  calling 
of  a  general  convention  of  the  States  tO'  meet  at 
Philadelphia  on  the  second  Monday  in  May,  1787, 
"to  take  into  consideration  the  situation  of  the  United 
States ;  to  devise  such  further  provisions  as  shall  ap- 
pear to  them  necessary  to  render  the  constitution  of 
the  federal  government  adequate  to  the  exigencies  of 
the  Union;  and  to  report  such  an  act  for  that  pur- 


STATE  RIGHTS  23 

pose  to  the  United  States,  in  Congress  assembled, 
as,  when  agreed  to  by  them,  and  afterwards  confirmed 
by  the  legislatures  of  every  State,  will  effectually  pro- 
vide for  the  same."  (Elliott's  Debates,  vol.  i,  p.  118.) 
This  was  sent  to  the  States  which  had  appointed  the 
commissioners  to  Congress,  and  the  executives  of  all 
the  States.  On  Febniary  21,  1787,  Congress  took 
the  matter  into  consideration  and  passed  this  resolu- 
tion: "Resolved,  that  in  the  opinion  of  Congress  it 
is  expedient  that,  on  the  second  Monday  in  May  next, 
a  convention  of  delegates,  who  shall  have  been  ap- 
pointed by  the  several  States,  be  held  at  Philadel- 
phia for  the  sole  and  express  purpose  of  revising  the 
Articles  of  Confederation  and  reporting  to  Congress 
and  the  several  legislatures  such  alterations  and  pro- 
visions therein  as  shall,  when  agreed  to  in  Congress, 
and  confirmed  by  the  States,  render  the  federal  Con- 
stitution adequate  to  the  exigencies  of  government 
and  the  preservation  of  the  Union." 

On  this  action  of  Congress  the  convention  met  at 
Philadelphia,  May  14,  1787.  But  how  did  it  convene? 
Where  did  those  who  were  members  of  this  assembly 
(this  convention)  get  their  authority?  The  records 
show  (Elliott's  Debates,  vol.  i,  p.  126)  that  twelve 
of  the  thirteen  States,  i.  e.,  all  except  Rhode  Island, 
sent  men  commissioned  by  the  State  authorities  to 
act  for  the  States,  as  their  deputies,  in  the  business 
for  which  they  were  called  to  meet,  viz.,  "to  revise 
the  federal  Constitution  and  adapt  it  to  the  exigen- 
cies of  government,  and  to  preserve  the  Union,"  "one 


24  A  STUDY  IN 

State  at  least  asserting  her  sovereign  act  in  so  doing 
(Georgia) — "the  State  of  Georgia  bj  the  grace  of 
God  free,  sovereign,  and  independent."  (See  Ordi- 
nance in  office  of  Secretary  of  State,  Augusta,  Ga., 
April  24,  178 Y.) 

When  the  convention  met  George  Washington,  one 
of  the  commissioners  from.  Virginia,  was  unani- 
mously chosen  president  of  the  body,  and  William 
Jackson,  secretary.  All  the  meetings  were  held  be- 
hind closed  doors,  and  the  sharp  contentions  of  their 
debates  were  only  known  to  the  public  after  the  pub- 
lication, in  1842,  of  what  are  known  as  the  Madison 
Papers.  One  of  the  rules  adopted  to  control  the  con- 
duct of  the  conventions  was  "that  no  copy  be  taken 
of  any  entry  upon  the  journal  during  the  sitting  of 
the  house  without  leave  of  the  house;  that  members 
only  be  permitted  to  inspect  the  journal;  that  noth- 
ing spoken  in  the  house  be  printed  or  otherwise  pub- 
lished, or  communicated,  without  leave."  It  was 
very  soon  discovered  that  those  who  had  come  as  the 
commissioners  of  the  States  could  not  do  anythine; 
with  the  Articles  of  Confederation  by  way  of  revi- 
sion, so  they  resolved  upon  working  out  a  new  plan 
of  Government.    Then  came  the  question,  what  plan  ? 

Four  general  propositions  were  submitted,  two  on 
the  basis  of  a  national  government;  two  on  that  of 
a  federal  government.  It  will  thus  be  seen  there 
were  in  the  convention  two  parties  which  may  be 
designated  as  the  Ifationals  and  Federals.  Those 
of  the  iPTational   party  contending  for  doing  away 


STATE  RIGHTS  25 

with  every  feature  of  federalism  and  providing  "for 
the  establishment  of  a  single  representative  republic, 
with  the  division  of  the  powers  of  Government  into 
three  departments."  This  was  known  as  the  Vir- 
ginia plan,  and  advocated  by  Mr.  Randolph.  The 
other  plan,  of  a  national  form  of  government,  was 
submitted  by  Colonel  Hamilton,  of  i^ew  York.  It 
differed  from  the  Virginia  plan  only  in  some  de- 
tails. 

On  the  part  of  those  who  contended  for  a  federal 
system  two  propositions  w'ere  submitted — one  by  Mr. 
Patterson,  of  !New  Jersey,  "which  proposed  to  dele- 
gate only  a  few  additional  powers  to  Congress  with- 
out any  other  change ;  the  other  was  proposed  by  Mr. 
Charles  Pinckney,  of  South  Carolina.  The  plan  of 
the  latter  provided  not  only  for  the  delegation  of 
additional  powers,  such  as  to  levy  duties  on  foreign 
imports,  to  regiilate  commerce  with  foreign  nations, 
and  for  a  division  of  the  powers  delegated  into  three 
departments  named,  but  it  also  provided  a  complete 
machinery  for  the  execution  of  all  the  federal  powers 
conferred  by  a  federal  organization,  similar  to  that  of 
the  States,  and  by  which  the  fede7-al  character  of 
government  would  be  retained."  This  idea  or  plan 
was  suggested  by  Mr.  Jefferson  in  a  letter  written  to 
Mr.  Madison  from  Paris,  December  16,  1786.  In 
this  letter  (See  Jefferson's  Complete  WorJcs,  vol.  xl, 
p.  66)  Jefferson's  plan  is  set  forth  in  these  words, 
viz.,  "To  make  us  one  nation  as  to  foreign  concerns 
and  keep  us  distinct  in  domestic  ones  gives  the  outline 


26  A  STUDY  IIT 

of  the  proper  division  of  powers  between  tlie  general 
and  particular  governments." 

The  convention  first  took  up  and  discussed  the 
plan  introduced  by  Mr.  Randolph,  of  Virginia.  They 
considered  it  in  "committee  of  the  whole."  On  May 
30  in  committee  of  the  whole  they  adopted  this  reso- 
lution :  "Resolved,  that  it  is  the  opinion  of  this  com- 
mittee that  a  national  government  ought  to  be  estab- 
lished, consisting  of  a  supreme  legislative,  judiciary, 
and  executive."  The  votes  were  taken  by  States. 
There  were  eight  States  out  of  the  twelve  present. 
Six  voted  in  the  affirmative,  one  (Connecticut)  in 
the  negative,  one  divided  (l^ew  York).  After  per- 
fecting this  plan,  i.  e.,  the  plan  for  a  national  govern- 
ment, on  June  20,  when  the  report  of  the  committee 
was  considered  by  the  house,  eleven  States  being 
present  by  their  commissioners,  this  resolution  was 
not  agreed  to.  On  motion  of  Mr.  Ellsworth  the  word 
"national"  was  stricken  out  and  "The  Government 
of  the  United  States"  was  substituted  for  it.  (See 
journal,  Elliott's  Debates,  vol.  i,  p.  151.) 

There  was  evidently  a  majority  in  the  body  op- 
posed to  setting  aside  the  federal  system.  Mr.  Ran- 
dolph's plan  was  gone  over  very  carefully  then,  and 
where  "national"  was  written,  the  words  "The 
Government  of  the  United  States"  was  written  in- 
stead. It  was  after  further  discussion  discovered 
that  Mr.  Pinckney's  plan  was  the  only  one  that  could 
be  adopted.  I  quote  now  from  A.  H.  Stevens' 
Pictorial  History  of  the  United  States,  p.  295:    "By 


STATE  RIGHTS  27 

his  [Pinckney's]  plan  all  federal  legislative  power 
delegated  was  still  to  be  vested  in  the  Congress  of 
the  United  States,  but  this  Congress  it&elf  was  to  be 
divided  into  two  branches,  an  upper  and  lower  house, 
the  concurrence  of  both  of  which  was  to  be  necessary 
to  the  passage  of  any  law  or  public  measure." 

The  great  contest  between  the  Nationals  and 
Federals  was  now  on  the  question  of  suffrage  of  the 
States  in  the  two  proposed  houses  of  Congress.  By 
many  of  the  Federalist  it  was  insisted  that  the  vote 
of  each  should  be  as  it  was  in  the  old  Constitution ; 
that  is,  that  the  vote  in  each  house  on  all  questions 
should  be  by  States  and  without  regard  to  the  num- 
ber of  their  representatives  in  either.  On  the 
[National  side  it  was  most  persistently  maintained 
that  in  view  of  the  great  disparity  in  population  and 
wealth  between  the  smaller  and  larger  States,  this 
equality  of  political  power  should  not  be  retained 
in  either  house.  A  majority  of  the  Federals  finally 
yielded  the  point  as  to  the  house,  but  would  not 
yield  an  equal  voice  on  part  of  the  several  States 
in  the  Senate.  They  were  determined  to  maintain  an 
equality  of  political  power  in  the  States  severally  in 
whatever  form  the  Constitution  might  be  amended. 
On  the  first  test  vote  to  allow  each  State  an  equal 
vote  in  the  Senate,  the  States  stood  five  for  it  and 
five  against  it,  with  one  divided.  (Journal,  Elliott's 
Debates  vol.  i,  p.  193.)  The  yeas  were  Connecticut, 
JSTew  York,  New  Jersey,  Delaware,  Maryland,  five; 
the    nays,    Massachusetts,    Pennsylvania,    Virginia, 


28  A  STUDY  11^ 

North  Carolina,  South  Carolina,  five ;  divided,  Geor- 
gia, one.  Eleven  States  only,  then  as  before,  were 
present.  New  Hampshire  was  still  absent.  This 
was  on  July  2,  and  it  was  at  this  stage  of  the  pro- 
ceedings that  Mr.  Bedford,  of  Delaware,  announced 
the  position  of  the  Federals  in  these  words:  "That 
all  the  States  at  present  are  equally  sovereign  and 
indepedent  has  been  asserted  from  every  quarter  in 
this  house.  The  small  States  never  can  agree  to  the 
Virginia  plan  [i.  e.,  the  National  plan],  and  why 
then  is  it  still  urged  ?  Let  us  then  do  what  is  in  our 
power — amend  and  enlarge  the  confederation,  but 
not  alter  the  federal  system."  (Madison  Papers, 
p.  193.) 

It  was  here  the  convention  came  to  a  halt.  To 
make  progress  in  the  work  assigned  them  they  at  this 
juncture  raised  a  committee  consisting  of  a  member 
from  each  State.  Mr.  Yates  from  New  York  was  a 
member  of  this  committee,  and  has  given  an  account 
of  its  work.  It  is  found  in  Elliott's  Debates,  vol.  i, 
p.  477.  We  here  quote  it  as  an  important  document 
in  this  study. 

"The  grand  committee  met  [July  3].  Mr.  Gerry 
was  chosen  chairman.  The  committee  proceeded  to 
consider  in  what  manner  they  should  discharge  the 
business  with  which  they  were  intrusted.  By  the 
proceedings  in  the  convention,  they  were  so  equally 
divided  on  the  important  question  of  representation 
in  the  two  branches,  that  the  idea  of  a  conciliatory 
adjustment  must  have  been  in  contemplation  of  the 


STATE  RIGHTS  20 

house  in  the  appointraent  of  this  committee.  But 
still  how  to  effect  this  salutary  purpose  was  the  ques- 
tion. Many  of  the  members,  impressed  with  the 
utility  of  the  general  government,  connected  with  it 
the  indispensable  necessity  of  a  representation  from 
the  States  according  to  their  numbers  and  wealth ; 
while  others  equally  tenacious  of  the  rights  of  the 
States,  would  admit  of  no  other  representation  brt 
such  as  was  strictly  federal,  or,  in  other  words, 
equality  of  suffrage.  This  brought  on  a  discussion 
of  the  principles  on  which  the  house  [i.  e.,  the  con- 
vention] had  divided,  and  a  lengthy  recapitulation 
of  the  arguments  advanced  in  the  house  in  support 
of  these  opposite  propositions. 

"As  I  had  not  openly  explained  my  sentiments  on 
any  former  occasion  on  this  question,  but  constantly, 
in  giving  my  vote,  showed  my  attachment  to  the 
national  government  on  federal  principles,  I  took 
this  occasion  to  explain  my  motives.  These  remarks 
gave  rise  to  a  motion  of  Mr.  Franklin,  which,  after 
some  modification,  was  agreed  to  and  made  the  basis 
of  the  following  report  of  the  committee: 

"  'The  committee  to  whom  was  referred  the  eighth 
resolution  reported  from  the  committee  of  the  whole 
house,  and  so  much  of  the  seventh  as  had  not  been 
decided  on,  submit  the  following  report: 

"  'That  the  subsequent  propositions  be  recom- 
mended to  the  Convention,  on  condition  that  both 
shall  be  generally  adopted. 

'That    in    the    first    branch    of    the    legislature 


i<  c 


30  A  STUDY  IN^ 

[House  of  Representatives],  eacli  of  the  States  now 
in  the  Union  be  allowed  one  member  for  every  forty 
thousand  inhabitants  of  the  description  reported  in 
the  seventh  resolution  of  the  committee  of  the  whole 
house.  [The  seventh  resolution  of  the  committee 
of  the  whole  house  had  fixed  "three-fifths"  on  federal 
ratio  of  representation  (Stephenson).]  That  each 
State,  not  containing  that  number,  shall  be  allowed 
one  member. 

"  'That  bills  for  raising  or  apportioning  money, 
and  for  fixing  salaries  for  the  officers  of  the  govern- 
ment of  the  United  States,  shall  originate  in  the  first 
branch  of  the  legislature,  and  shall  not  be  altered 
or  amended  by  the  second  branch ;  and  that  no  money 
shall  be  drawn  from  the  public  treasury  but  in  pur- 
suance of  appropriations  to  be  originated  in  the  first 
branch. 

"  'That  in  the  second  branch  of  the  legislature 
each  State  shall  have  an  equal  vote.'  " 

This  report  was  not  adopted.  The  right  of  the 
States  to  hold  a  negative  in  their  own  hands,  in  all 
cases  that  the  States  should  have  nothing  to  say  as 
States  through  their  Senators  about  revenue  and  ap- 
propriation bills,  the  majority  would  not  yield.  The 
report  was  recommitted  to  a  committee  of  five,  ap- 
pointed by  ballot.  The  report  of  this  committee 
failed  to  receive  adoption  by  the  house.  The  sub- 
ject was  given  to  another  committee  composed  of 
a  member  from  each  State.  This  committee  was 
chosen  by  ballot.     The  report  of  this  committee  was 


STATE  RIGHTS  31 

finally  adopted.  This  report  fixed  the  number  of 
members  which  each  State  should  have  in  the  House 
of  Representatives  and  provided  for  future  appor- 
tionments according  to  the  population,  etc.,  as  it 
stands  in  the  Constitution.  Nine  States  voted  for  it. 
Two  against  it  {Elliott's  Debates^  vol.  i,  p.  195). 

That  clause  which  gave  the  House  of  Representa- 
tives absolute  power  over  money  bills  was  voted  down. 
That  part  of  the  first  report  which  gave  to  the  States 
severally  an  equal  vote  was  agreed  to.  Mr.  Madison 
tells  us  in  his  account  of  the  discussion  just  here  that 
"Mr.  Sherman,  of  Connecticut,  urged  the  equality  of 
votes  not  so  much  as  a  security  for  the  small  States 
as  for  the  State  government,  which  could  not  be  pre- 
served unless  they  were  represented.  Mr.  Dayton 
declared  that  the  smaller  States  could  never  give  up 
their  equality ;  that  for  himself  he  would  in  no  event 
yield  that  security  for  their  rights  .  .  .  Dr.  Johnson, 
of  Connecticut,  would  consent  for  numbers  to  be  repre- 
sented in  one  branch,  but  the  States  must  be  in  the 
other."  {Madison's  Papers,  vol.  ii,  p.  1098.)  Mr. 
A.  H.  Stevens  says  {Pictorial  History  of  the  United 
States,  p.  299)  :  "Most  of  the  Nationals  after  their 
defeat  on  the  main  point  of  their  struggle,  with  a 
patriotism  seldom  exhibited,  gracefully  yielded  their 
opposition  and  afterwards  devoted  all  their  powers 
to  revising  the  Articles  of  Confederation  and  in  per- 
fecting the  plan  submitted  by  Mr.  Pinckney.  This 
was  especially  the  case  with  Mr.  Madison,  Mr.  Wil- 
son, and  Colonel  Hamilton.     All  the  essential  feat- 


32  A  STUDY  IN 

ures  of  the  old  Constitution  were  preserved.  Some 
very  important  changes  in  the  detail  were  made. 
These  consisted  chiefly  in  the  new  organization  and 
new  machinery  introduced  for  the  execution  of  the 
federal  powers  within  the  sphere  of  their  limitations. 
The  new  delegations  of  power  were  also  of  an  impor- 
tant character,  but  few  in  number.  The  following 
are  the  principle  ones  of  these: 

"1st.  The  power  of  the  States,  in  Congress  as- 
sembled, to  raise  revenues  by  duties  upon  imports, 
etc.,  and  to  lay  taxes  directly  upon  the  people  of 
the  several  States,  to  be  apportioned  on  the  three- 
fifths  basis  of  population. 

"2d.  The  power  to  make  uniform  rules  to  be  ob- 
served in  all  the  States  for  the  admission  of  aliens  to 
citizenship  in  the  several  States,  and  like  uniform 
rules  regulating  bankruptcy. 

"3d.  The  power  to  regulate  commerce  with  for- 
eign nations  and  among  the  several  States. 

"4th.  The  power  to  promote  the  progress  of 
science  and  useful  arts,  by  securing  for  limited  times 
to  authors  and  inventors  the  exclusive  right  to  their 
writings  and  discoveries." 

We  must  not  overlook  in  this  record  of  the  doings 
of  this  convention  that  there  was  an  obligation  as- 
sumed by  the  States,  and  put  in  the  Constitution — 
the  bond  of  the  Union — without  which  obligation  the 
Constitution  would  never  have  been  accepted,  viz.,  the 
rendition  of  fugitives  from  service  to  one  State  from 
another. 


STATE  RIGHTS  33 

Ou  September  17,  1787,  the  Constitution  was 
signed  and  sent  to  the  Congress  of  the  United  States, 
sitting  under  the  authority  of  the  Articles  of  Con- 
federation.    It  v/as  sent  with  these  words : 

"Done  in  Convention  by  the  unanimous  consent  of 
the  States  present  the  seventeenth  day  of  September, 
in  the  year  of  our  Lord  1787,  and  of  the  independence 
of  the  United  States  of  America  the  twelfth.  In  wit- 
ness whereof  we  have  hereunto  subscribed  our  names. 
"George  Washington, 
^^ President  and  Deputy  from  Virginia/' 

This  shows  by  whose  authority  the  Constitution 
was  prepared  and  submitted,  viz.,  by  the  States.  The 
ratification  of  nine  States  was  required  to  make  the 
law  between  the  States  ratifying  it.  (See  Constitu- 
tion of  the  United  States,  Article  VII.)  Congress 
having  received  the  new  Constitution,  that  body 
ordered  the  insti*ument  sent  to  the  legislature  of 
each  one  of  the  thirteen  States.  The  legislatures 
of  the  several  States  called  for  the  election  of  com- 
missioners to  sit  in  convention  of  each  one  of  these 
States  and  take  the  matter  into  consideration.  These 
commissioners  were  elected  by  the  people  of  eacfi 
State,  and  under  the  authority  of  each  State  the 
commissioners  convened,  and  debated,  amended,  and 
acceded  to  this  new  Constitution.  It  was  in  this  way, 
according  to  the  record  in  the  case,  that  the  Constitu- 
tion became  law  between — not  over,  nor  in  the  place 
of,  but  between — ^the  States  "so  ratifying  the  same." 


34  A  STUDY  IN 

A  If  nine  out  of  thirteen  States  ratified  the  new  Con- 
f  stitution,  it  should  be  law  to  the  nine.  It  was  espe- 
t  cially  written  in  the  Constitution  that  the  govern- 
ment herein  provided  for  should  guarantee  to  every 
State  a  republican  form  of  government.  (See  Article 
IV,  Section  4,  of  the  Constitution.)  Now  if  the  States 
were  absorbed  into  a  national  government,  why  make 
recognition  of  them,  or  why  provide  for  that  which 
no  longer  exists  ?  This  provision  is  certainly  made 
in  this  article,  yea,  it  is  imposed  upon  the  Federal 
Government  to  see  to  it  that  the  States,  as  such,  are 
protected,  upheld,  maintained,  in  that  form  of  gov- 
ernment in  which  as  States  they  had  existed. 

But  how  did  the  States  proceed  to  make  the  Con- 
stitution the  bond  of  union  between  themselves  ?  In 
the  way  specified  therein.  Each  State,  by  the  order 
of  the  State  authorities,  held  elections  for  commis- 
sioners; these  commissioners  assembled  in  conven- 
tions, and,  after  considering  the  document  submitted 
to  them,  approved,  ratified,  the  Constitution.  This 
part  of  the  record  of  the  case  is  of  great  importance 
and  should  be  considered  with  great  care.  The  con- 
sideration of  the  adoption  of  the  Constitution  in  these 
State  conventions  in  four  instances  at  least  caused 
keen  and  prolonged  debate.  I  have  reference,  of 
course,  to  Massachusetts,  New  York,  Pennsylvania, 
and  Virginia.  It  is  in  these  discussions  we  discover 
the  meaning  of  the  men  who  aided  in  writing  the 
Constitution,  and  who  of  course  ought  to  have  known 
the  meaning  of  what  they  did  as  well  at  least  as  those 


STATE  EIGHTS  35 

who  have  since  attempted  to  explain  the  meaning  of 
what  was  done. 

Let  "US  consider  first  the  convention  held  in  Massa- 
chusetts. It  was  composed  of  355  members,  and 
sat  three  weeks.  It  "ratified"  the  Constitution  by  a 
majority  of  nineteen  votes.  The  question  which 
stirred  the  members  of  the  convention  to  the  most 
acute  point  of  debate  was :  Were  the  sovereignty  and 
rights  of  the  States  sufiiciently  conserved  ?  The 
dread  that  they  might  not  be,  the  fear  that  the  exist- 
ence and  the  rights  of  the  States  might  be  in  the  least 
threatened,  moved  the  gentlemen  of  the  convention 
to  discuss  freely,  move  cautiously,  and  record  their 
action  with  great  precision  of  words.  (See  Massa- 
chusetts Debates,  published  by  order  of  the  State.) 
It  was  from  this  convention  that  the  amendment  was 
proposed  out  of  which  Article  X  of  the  amended 
Constitution  was  adopted  as  one  of  the  fundamental 
principles  of  our  federal  government.  The  amend- 
ment proposed  was  in  these  words:  "That  it  [the 
Constitution]  explicitly  declares  that  all  powers  not 
expressly  delegated  by  the  aforesaid  Constitution  are 
reserved  to  the  several  States,  to  be  by  them  exer- 
cised." Article  X  reads:  "The  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

It  is  recorded  that  on  the  floor  of  the  convention 
President  Hancock  said,  "I  give  my  assent  to  the 
Constitution  in  full  confidence  that  the  amendments 


36  A  STUDY  IN 

'  proposed  will  soon  become  a  part  of  the  system. 
These  amendments  being  no  wise  local,  but  calculated 
to  give  security  and  ease  alike  to  all  the  States,  I 
think  that  all  will  agree  to  them."  In  transmitting 
the  action  of  the  State  convention  to  the  legislature, 
it  is  written  that  Mr.  Hancock  further  said :  "The 
objects  of  the  proposed  Constitution  are  defence 
against  external  enemies  and  promotion  of  tran- 
quillity and  happiness  amongst  the  States."  The  of- 
ficial utterance  wherein  the  action  of  this  convention 
is  set  forth  is  in  part  in  these  words:  "The  conven- 
tion having  impartially  discussed  and  fully  considered 
the  Constitution  for  the  United  States  of  America, 
and,  acknowledging  with  grateful  hearts  the  good- 
ness of  the  Supreme  Ruler  of  the  universe  in  af- 
fording the  people  of  the  United  States  in  the  course 
of  his  pro^adenee  an  opportunity  deliberately  and 
peaceably,  without  fraud  or  surprise,  of  entering  into 
an  explicit  and  solemn  compact  with  each  other  by 
assenting  to  and  ratifying  a  new  Constitution  in 
order,  etc.,  etc.,  do,  in  the  name  and  behalf  of  the 
people  of  the  Commonwealth  of  Massachusetts,  assent 
to  and  ratify  the  said  Constitution  for  the  United 
State  of  America." 

From  language  such  as  this  we  are  not  left  in  doubt 
as  to  the  meaning  of  this  State's  action  with  reference 
to  the  rights  of  the  States  under  the  Constitution, 
and  if  Massachusetts  ever  used  authority  or  force  to 
destroy  any  of  those  rights  reserved  to  the  other 
States,  or  her  own  written  agreement,  she  never  got 


STATE  RIGHTS  37 

that  power  out  of  what  she  oflSciallj  terms  a  "soleuiu 
compact"  between  the  United  States. 

Consider  next  the  action  of  New  York.  In  this 
State's  convention  wei-e  some  of  the  ablest  men.  The 
debates  were  keen,  long,  and  acrimonious.  The  whole 
contest  was  waged  here,  too,  around  the  question  of 
the  existence  and  rights  of  the  States.  There  seems 
to  have  been  greater  opposition  here  to  the  Constitu- 
tion for  fear  that  the  powers  delegated  to  the  federal 
government  might  be  exercised  over  the  State  gov- 
ernment. The  adopting  act  is  a  lengthy  one  (see 
Elliott's  Debates,  vol.  i,  pp.  327-329),  and  written 
with  that  precision  which  shows  how  jealous  were 
the  commissioners  to  maintain  the  rights  of  the  com- 
monwealth of  their  State.  Alexander  Hamilton  said, 
among  other  things,  when  advocating  the  adoption  of 
the  Constitution:  "Sir,  the  most  powerful  obstacle 
to  the  members  of  Congress  betraying  the  interest  of 
their  constituents  is  the  State  legislature  themselves, 
who  will  be  standing  bodies  of  observation,  possess- 
ing the  confidence  of  the  people,  jealous  of  federal 
encroachments,  and  armed  with  every  power  to  check 
the  first  essays  of  treachery."  (See  Elliott's  Debates, 
vol.  ii,  p.  266.) 

In  every  speech  made  in  favor  of  adopting  the 
Constitution  the  rights  of  the  States  were  conceded, 
and  in  the  final  action  of  the  convention  it  was  espe- 
cially stipulated  "that  the  powers  of  government  may 
be  reassumed  by  the  people  whensoever  it  shall  be- 
come necessary  to  their  happiness;  that  every  power. 


A  oun«?n 


38  A  STUDY  IN 

jurisdiction,  and  right,  which  is  not  by  the  said  Con- 
stitution clearly  delegated  to  the  Congress  of  the 
United  States  or  other  departments  of  the  govern- 
ment thereof,  remains  to  the  people  of  the  several 
States,  or  to  their  respective  State  governments,  to 
whom  they  may  have  granted  the  same,"  etc.  (See 
Elliott's  Debates,  vol.  i,  p.  327.) 

When  we  come  to  consider  the  action  of  Pennsyl- 
vania, we  find  that  she  adopted  the  Constitution  by 
assenting  to  and  ratifying  the  foregoing  Constitution 
for  the  United  States  of  America.  Mr.  James  Wil- 
son, who  was  a  member  of  the  State  convention,  was 
also  in  the  convention  that  prepared  the  Constitution 
for  the  States,  and  in  that  convention  he  made 
speeches  which  clearly  reveal  what  the  convention 
of  1787  thought  on  the  rights  of  the  States.  He  was 
in  line  with  the  national  party  in  the  convention,  but 
when  their  plan  was  defeated,  he,  with  Morris,  Ham- 
ilton, King,  and  Madison,  advocated  the  federal 
system. 

The  chief  ground  of  Wilson's  advocacy  was  that  the 
rights  of  the  States  were  recognized  and  secured.  In 
speaking  of  the  system  of  this  government  he  says: 
"This,  instead  of  placing  the  State  governments  in 
jeopardy,  is  founded  on  their  existence.  On  this 
principle  its  organizations  depends;  it  must  stand 
or  fall  as  the  State  governments  are  secured  or 
ruined."     (See  Elliott's  Debates,  vol.  ii,  p.  503.) 

When  we  consider  the  action  of  the  convention  of 
Virginia,  June  26,  1788,  we  find  that  the  question  of 


STATE  RIGHTS  39 

ratifying  tlie  Constitution  was  vigorously  and  keenly 
debated  concerning  what  it  meant  concerning  the 
rights  of  the  States.  In  her  adopting  act  it  is  ex- 
pressly recorded  "that  the  powers  granted  under  the 
Constitution,  being  derived  from  the  people  of  the 
United  States,  may  be  resumed  by  them  whensoever 
the  same  shall  be  perverted  to  their  injury  or  oppres- 
sion; and  that  every  power  not  granted  thereby  re- 
mains with  them  and  at  their  will,  and  that  therefore 
no  right  of  any  denomination  can  be  cancelled, 
abridged,  restrained,  or  modified,  by  the  Congress, 
by  the  Senate  or  House  of  Representatives,  acting  in 
any  capacity,  by  the  President,  or  any  department  or 
officers  of  the  United  States  except  in  those  instances 
in  which  power  is  given  by  the  Constitution  for  those 
purposes,"  etc.,  etc. 

So  we  see  by  the  record  of  the  case: 

First,  that  the  convention  which  formulated  the 
Constitution  was  composed  of  deputies  of  the  States. 
In  all  their  voting  they  voted  as  States.  When  their 
work  was  completed  it  was  submitted  to  the  States 
for  their  approval  or  disapproval.  ' 

Second.  We  see  from  further  examination  of  the 
record  that  each  one  of  the  States,  in  its  sovereign 
capacity  in  convention  of  delegates  chosen  by  the 
people  of  each  State,  took  into  consideration  the  Con- 
stitution sent  them  by  the  Congress  of  the  United 
States,  and  after  days  of  discussion — some  proposing 
amendments — all  "asented  to  and  ratified"  the  docu- 
ment as  a  bond  of  union  known  as  the  federal  govern- 


40  A  STUDY  IN 

ment  of  the  Union.     It  was  the  action  of  the  States 

that  made  it  the  bond  of  the  Union. 

Third.  We  have  seen  by  the  study  of  the  record 
of  the  case  that  in  the  convention  there  were  two 
parties,  one  wanting  a  consolidated  government  (a 
national  nuion),  the  other  contending  for  a  federal 
republic  in  which  ths  existence  and  rights  of  the  States 
should  be  recognized  and  preserved.  The  party 
known  as  the  federal  party  won  in  their  contention, 
and  the  word  "National"  was  by  act  of  the  convention 
stricken  out  of  the  proposed  Constitution.  No  official 
act  of  the  convention  in  any  way  favored  the  idea  of 
a  nation.  Mr.  Oliver  Wolcott,  of  Connecticut,  ex- 
presses the  idea  when  he  says,  "The  Constitution 
effectually  secures  the  States  in  their  several  rights. 
It  must  secure  them  for  its  own  sake,  for  they  are 
the  pillars  which  uphold  the  general  system.  The 
Senate,  a  constituent  branch  of  the  general  legisla- 
ture, without  whose  assent  no  public  act  can  be  made, 
are  appointed  by  the  States,  and  will  secure  the  rights 
of  the  States  ...  So  well  guarded  is  this  Con- 
stitution throughout,  that  it  seems  impossible  that 
the  rights  either  of  the  States  or  the  people  should 
be  destroyed."     (^Elliott's  Debates,  vol.  ii,  p.  201.) 


STATE  RIGHTS 


CHAPTER  III 

THE  PURPOSE  OF  THE  CONVENTION  OF  1787. 

From  a  careful  study  of  the  records  of  the  case 
herein  set  forth,  and  the  Constitution,  we  may  safely 
conclude  that  the  following  are  facts  indisputable 
and  as  such  cannot  truthfully  be  denied: 

1.  It  was  not  the  intention  or  purpose  of  the 
convention  of  1787  to  make  a  consolidated  govern- 
ment of  the  United  States.  That  there  were  men 
in  the  convention  who  desired  that  such  should  be  the 
case  we  admit;  but  the  final  decision  of  the  conven- 
tion is  seen  in  their  action,  when  by  their  unanimous 
vote  they  eliminated  the  word  "national"  and  sub- 
stituted therefor^.the  phrase  "Government  of  the 
United  States."  (See  Elliott's  Debates,  vol.  i,  p. 
183.)  The  Government  of  the  United  States  is  a 
federal  Government,  and  not  a  national  one.  By 
the  bond  of  union,  i.  e.,  the  Constitution,  it  is  one 
Government  as  to  "foreign  concerns  and  kept  dis- 
tinct in  domestic  ones."  There  is  no  act  of  the  con- 
vention that  justifies  the  writing  of  the  nature  of 
this  Government  as  "national."  On  the  contrary, 
(the  distinctive  act  of  that  body  requires,  when  its, 
nature  is  to  be  spoken  of  or  written  about,  that  it 
shall  be  t-ermed  "federal."    Federal  means  a  govem- 

41 


42  A  STUDY  IK 

ment  by  representatives  and  a  government  by  agree- 
ment or  covenant.  (See  derivation  of  word  from 
foedus.)  The  man  who  speaks  of  the  United  States 
as  a  national  government  speaks  of  that  which  has 
no  existence.  The  legislature,  judicial,  and  execu- 
tive functions  of  the  federal  government  have  no 
authority  apart  from  that  granted  in  the  Constitution. 
All  power  or  authority  by  these  functions  of  govern- 
ment is  delegated  by  the  States.  To  exercise  any 
other  is  usurpation ;  to  do  otherwise  than  to  use 
the  authority  delegated  in  the  bond  of  union  is  'per- 
jury. The  President,  members  of  Congress,  and 
judges  are  required  to  swear  or  affirm  that  they  will 
"protect,  preserve,  and  defend  the  Constitution." 
Now  suppose  the  President,  to  carry  out  the  pur- 
poses of  his  administration,  used  the  army  and  navy 
in  a  way  not  prescribed  in  the  Constitution.  Is  he 
not  violating  his  oath  ?  If  the  dogmas  of  the  party 
which  put  him  in  the  position  of  Chief  Executive 
demand  that  he  shall  use  his  authority  to  do  things 
that  the  delegated  power  of  the  Constitution  does 
not  say  he  may  do,  or  does  say  he  shall  not  do,  what 
course  must  he  pursue  ?  The  answer  cannot  be  other- 
wise than  he  must  have  regard  to  his  oath,  for  the 
federal  government  is  to  be  administered  accord- 
ing to  the  Constitution,  not  the  dogmas  of  political 
parties.  It  is  true  that  to  administer  the  govern- 
ment a  majoriy  is  to  rule,  but  how  ?  Only  as  the 
Constitution  marks  out.  If  this  is  not  the  case,  the 
matter  of  administering  the  oath  of  office  is  sacrilege. 


STATE  EIGHTS  43 

If  the  oath  is  not  binding,  it  is  nonsense  to  exact  it. 
'No  honest  or  honorable  man  who  takes  that  oath 
would  consider  himself  obligated  to  do  things  which 
the  Constitution  he  had  sworn  to  "protect,  preserve 
and  defend"  did  not  give  him  authority  to  do.  And 
though  every  man  in  the  human  family  approved 
his  conduct  if  he  did  violate  his  oatJi  by  so  doing, 
that  man  is  guilty  of  perjury  as  defined  in  the  law. 
The  oath  of  office  did  not  require  the  President  to 
protect  and  enforce  the  idea  of  a  nation;  but  the 
oath  of  office  did  require  that  the  rights  of  the 
States  not  surrendered  to  the  federal  government 
should  be  preserved  and  protected. 

2.  It  is  evident  from  a  careful  study  of  the 
records  of  the  case  that  the  federal  government  is 
a  compact  hetiueen  the  States,  and  it  is  in  no  sense 
a  government  over  the  States.  If  this  is  questioned, 
Article  VII  of  the  Constitution  settles  it  beyond  all 
cavil.  This  section  reads:  "The  ratification  of  the 
conventions  of  nine  States  shall  be  sufficient  for  the 
establishment  of  this  Constitution  between  the  States 
so  ratifying  the  same."  In  this  statement  the  exist- 
ence of  the  States  as  such  is  recognized  and  their 
continued  existence  is  clearly  set  forth  in  the  manner 
of  organization  of  the  Senate  and  their  method  of 
voting.  The  States  were  not  bound  to  the  federal 
government  except  in  the  stipulations  of  the  Con- 
stitution ;  and  the  federal  government  had  no  power 
but  that  which  was  delegated  to  it  by  the  consent 
of  the  acceding  States.     According  to  Article  IV, 


44  A  STUDY  lis 

Sectiuii  4:  ■'The  United  States  governmeiiL  shall 
guarantee  to  every  State  iu  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them 
against  invasion,  and  on  application  of  tlie  legisla- 
ture or  of  the  executive  (when  the  legislature  can- 
not be  convened)  against  dumestic  violence."  Now  if 
the  States  ceased  to  exist,  why  this  provision  for  their 
protection  I  That  the  government  was  between  and 
not  over  the  States  was  a  fact  accepted  by  all  until 
the  teaching  of  Story,  Webster,  and  Kent  was  received 
[^nd  promulgated  by  their  followers.  In  1T9S  the 
Virginia  resolutions,  setting  forth  the  doctrine  that 
the  federal  government  Avas  a  compact  between  the 
States,  was  responded  to  with  an  emphatic  appro^'al 
by  all  the  States  taking  notice  of  it.  Another  fact: 
The  method  of  electing  the  President  declares  that 
this  federal  government  is  a  government  between  the 
States.  The  President  holds  his  oflBce  through  the 
majority  of  the  States  voting  for  him,  and  not  the 
majority  of  people  in  the  States.  Xow  if  the  govern- 
ment was  one  nation,  the  majority  of  all  the  people 
ought  to  elect  the  President,  But  from  the  method 
of  choosing  the  President,  we  see  the  rights  of  the 
States  preserved. 

3.  When  the  federal  government  begins  to  use  its 
power  to  the  injury  of  any  State,  or  in  a  manner 
inimical  to  that  State's  interests,  that  State  can 
withdraw  from  the  compact  or  union.  This  is  a 
well  known  provision  of  the  Constitution,  (See 
Article  X.)      Massachusetts  was  the  first  State  to 


STATE  RIGHTS  45 

threaten  to  resort  to  this  privilege — to  avail  herself 
of  it  when  the  federal  government  was  involved  in 
what  appeared  to  be  a  disastrous  war.  To  secede 
from  the  Union  was  first  thought  of  and  first  threat- 
ened bv  the  State  of  Massachusetts.  The  Hartford 
convention  met  in  the  city  of  Hartford  December 
15,  1814.  It  was  composed  of  delegates  from  Massa- 
chusetts, Rhode  Island,  Xew  Hampshire,  Vermont, 
and  Connecticut.  "Events  may  prove  [see  Journal 
of  Hartford  Convenfion,  January  4,  1815,  p.  5] 
that  the  causes  of  our  calamities  [in  the  war  of  1812] 
are  deep  and  permanent.  They  may  be  found  to 
proceed  not  merely  from  blindness  of  prejudice,  pride 
of  opinion,  violence  of  party  spirit,  or  the  confusion 
of  the  times,  but  they  may  be  traced  to  implacable 
combination  of  individuals  or  States  to  monopolize 
power  and  office  and  to  trample  without  remorse  upon 
the  rights  and  interests  of  the  commercial  sections 
of  the  Union.  Whenever  it  shall  appear  that  these 
causes  are  radical  and  permanent,  a  separation  by 
equitable  arrangement  will  be  preferable  to  an  alli- 
ance by  constraint  among  nominal  friends,  but  real 
enemies,  inflamed  by  mutual  hatred  and  jealousies 
and  inviting  by  intestine  divisions  contempt  and  ag- 
gressions from  abroad."  This  convention  further 
records  its  States'  rights  doctrine  in  language  such 
as  this:  "It  is  as  much  the  duty  of  the  State  to 
watch  over  the  rights  reserved  as  of  the  United  States 
to  exercise  the  powers  which  are  delegated."  (Journal 
of  Hartford  Convention,  p.   7.)      It  makes  further 


46  A  STUDY  IN 

this  record:  "But  in  case  of  deliberate,  dangerous, 
and  palpable  infractions  of  the  Constitution  affecting 
the  sovereignty  of  the  States  and  liberties  of  the 
people,  it  is  not  only  the  right,  but  the  duty  of  such 
State  to  interpose  its  authority  for  their  protection  in 
the  manner  best  calculated  to  secure  that  end.  States 
which  have  no  common  umpire  must  be  their  own 
judges  and  execute  their  own  decisions."  (See 
Journal  Hartford  Convention,  pp.  10,  11.) 

The  convention  appointed  commissioners  to  lay 
their  complaints  before  the  federal  government. 
Messrs.  Harrison  Gray  Otis,  T.  H,  Perkins,  and  W. 
Sullivan  were  the  gentlemen  appointed  on  this  com- 
mission, who  were  to  make  a  report,  "if  they  fail," 
to  another  convention  to  be  held  in  Boston  the  third 
Thursday  in  June.  This  convention  never  convened 
for  the  reason  that — as  the  commissioners  reported — 
when  they  arrived  at  Washington  they  found  that 
peace  had  been  concluded.  (Proceedings  of  the 
Hartford  Convention,  p.  33.) 

Mr.  Daniel  Webster  says  Massachusetts  "gave  up 
all  opposition"  when  the  Supreme  Court  of  the 
United  States  decided  that  the  laws  of  which  she 
complained  were  constitutional.  The  gentlemen  who 
were  commissioners  say  it  was  because  peace  was  con- 
cluded. Whom  shall  we  accept  as  authority  in  this 
matter  ?  Both  cannot  be  right  and  truthful  in  theiV 
statements.  The  records  of  that  convention  of  course 
must  be  accepted  as  final.  They  flatly  contradict  Mr. 
Webster.     They  show  that  the  States  represented  in 


STATE  EIGHTS  47 

that  convention  declared  "in  cases  of  deliberate,  dan- 
gerous, and  palpable  infractions  of  the  Constitution 
affecting  the  sovereignty  of  the  States  and  the  liber- 
ties of  the  people  it  is  not  only  the  right,  but  the  duty^ 
of  such  States  to  interpose  its  authority  for  their 
protection  in  the  manner  best  calculated  to  secure 
that  end,  and  States  which  have  no  common  umpire 
must  be  their  own  judges  and  execute  their  own  de- 
cisions." (See  Journal  of  Hartford  Convention,  pp. 
10,  11.)  If  Massachusetts  protested  against  this  the 
record  does  not  show  it.  If  Mr.  Webster  had  any 
better  authority  he  never  gave  it.  From  the  records 
of  the  Hartford  convention  it  will  be  seen  that  the 
New  England  States  represented  therein  held  as  a 
fact  that  the  federal  government  is  the  creature  of  the 
States. 

It  will  be  further  seen  that  the  nature  of  this 
federal  government  is  a  compact  between  the  States, 
and  in  no  sense  is  it  a  government  over  the  States 
except  in  those  powers  delegated  by  the  States.  It 
will  be  seen  that  whenever  the  federal  government 
attempted  to  use  powers  not  granted,  it  was  not  only 
the  right,  but  the  duty,  of  the  States  to  interpose  its 
authority  for  their  protection.  If,  when  the  com- 
mercial States  feel  aggrieved  and  judge  that  the  com- 
mercial interest  are  in  jeopardy  by  the  conduct  of  the 
federal  government,  they  unite  to  protect,  aye,  resist, 
the  federal  government  there  is  no  treason,  no  rebel- 
lion, why  should  it  be  called  treason,  rebellion,  when 
the  agricultural  States  to  protect  agricultural  inter- 


48  A  STUDY  IN 

est  do  the  same  thing?  This  question  demands  an 
answer  of  every  earnest  student  of  history. 

New  England  was  plainly  within  her  rights,  and 
only  receded  from  her  position  of  threatening  to 
secede  from  the  Union  when  her  end  was  gained  by 
the  treaty  of  peace  with  Great  Britain ;  not  because 
her  conduct  was  treasonable  or  rebellious.  If  it  was 
right  for  the  States  of  New  England  to  take  such  a 
stand  in  1815,  what  made  it  wrong,  what  made  it 
treasonable,  for  the  Southern  States  to  take  the  same 
position  in  1861  ?  If  the  States  of  New  England 
were  clearly  in  the  right, — and  they  were,  in  their 
own  judgment, — how  can  the  Southern  States  for 
the  same  reason,  doing  the  same  thing,  be  adjudged 
rebellious  and  treasonable  ?  History  presents  this 
question  for  solution  and  answer.  Just  here  we  desire 
to  call  attention  to  the  advice  of  the  old  prophet  of  the 
Jewish  nation,  Jeremiah  G :  16 :  ''Stand  ye  in  the 
ways,  and  see,  and  ask  for  the  old  paths,  where  is 
the  good  way,  and  walk  therein,  and  ye  shall  find 
rest  for  your  souls." 

The  federal  government  is  a  government  of  law 
and  not  of  men.  The  teaching  of  the  press,  the 
dogmas  of  political  parties,  the  usurpation  of  the 
executive,  the  partisan  judgments  of  the  judiciary, 
and  the  unconstitutional  acts  of  the  legislative  depart- 
ment of  government  for  more  than  forty  years,  make 
the  exhortation  of  the  prophet  very  practical.  Giv- 
ing heed  to  the  advice,  we  here  republish  Madison's 
Report,   which    eminent  men   have  pronounced   the 


STATE  RIGHTS  49 

clearest  and  most  statesmanlike  exposition  of  the 
Constitution  ever  published.  We  reprint  it  in  the 
midst  of  these  studies  with  the  hope  that  young  men 
of  this  generation  will  read  it  carefully,  with  the 
faint  hope  that  some  of  our  Senators  and  Congress- 
men will  refresh  their  memory  on  some  things  they 
seem  to  have  forgotten.  We  trust  we  will  not  be 
presumptuous  if  we  suggest  among  the  things  they 
seem  to  have  forgotten  is  the  Constitution  and  their 
official  oaths,  for  they  contend  seemingly  more  for 
the  dogmas  and  dictates  of  political  parties  than  for 
the  constitutional  principles  of  the  federal  govern- 
ment. 

Mr.  Madision^s  Report  on  the  Virginia 
Resolutions 

Virginia. — House   of  Delegates,   Session   of   1799- 
1800.  / 

Report  of  the  Committee  to  whom  were  referred  the       \ 
communication  of  various  States,  relative  to  the 
resolutions  of  the  last  General  Assembly  of  this 
State,  concerning  the  Alien  and  Sedition  Laws. 

Whatever  room  might  be  found  in  the  proceedings 
of  some  of  the  States,  who  have  disapproved  of  the 
resolutions  of  the  General  Assembly  of  this  Common- 
wealth, passed  on  the  21st  day  of  December,  1798, 
for  painful  remarks  on  the  spirit  and  manner  of  those 
proceedings,  it  appears  to  the  Committee  most  con- 
sistent with  the  duty  as  well  as  dignity  of  the  Gen- 
eral Assembly,  to  hasten  an  oblivion  of  every  circum- 


50  A  STUDY  IN 

stance  which  might  be  construed  into  a  diminution 
of  mutual  respect,  confidence  and  affection,  among 
the  members  of  the  Union. 

The  committee  have  deemed  it  a  more  useful  task 
to  revise,  with  a  critical  eye,  the  resolutions  which 
have  met  with  their  disapprobation ;  to  examine  fully 
the  several  objections  and  arguments  which  have  ap- 
peared against  them;  and  to  inquire  whether  there 
can  be  any  errors  of  fact,  of  principle,  or  of  reason- 
ing, which  the  candor  of  the  General  Assembly  ought 
to  acknowledge  and  correct. 

The  first  of  the  resolutions  is  in  the  words  follow- 
ing: 

"Resolved,  That  the  General  Assembly  of  Virginia 
doth  unequivocally  express  a  firm  resolution  to  main- 
tain and  defend  the  Constitution  of  the  United  States, 
and  the  Constitution  of  this  State,  against  every  ag- 
gression, either  foreign  or  domestic,  and  that  they 
will  support  the  Government  of  the  United  States  in 
all  measures  warranted  by  the  former." 

No  unfavorable  comment  can  have  been  made  on 
the  sentiments  here  expressed.  To  maintain  and 
defend  the  Constitution  of  the  United  States,  and  of 
their  own  State,  against  every  aggression,  both  for- 
eign and  domestic,  and  to  support  the  Government  of 
the  United  States  in  all  measures  warranted  by  their 
Constitution,  are  duties  which  the  General  Assembly 
ought  always  to  feel,  and  to  which,  on  such  an  occa- 
sion, it  was  evidently  proper  to  express  their  sincere 
and  firm  adherence. 


STATE  RIGHTS  51 

In  their  next  resolution — "The  General  Assembly 
most  solemnly  declares  a  warm  attachment  to  the 
Union  of  the  States,  to  maintain  which,  it  pledges  all 
its  powers ;  and  that,  for  this  end,  it  is  their  duty  to 
watch  over  and  oppose  every  infraction  of  those  prin- 
ciples, which  constitute  the  only  basis  of  that  Union, 
because  a  faithful  observance  of  them  can  alone 
secure  its  existence  and  the  public  happiness." 

The  observation  just  made  is  equally  applicable  to 
this  solemn  declaration  of  warm,  attachment  to  the 
Union,  and  this  solemn  pledge  to  maintain  it;  nor 
can  any  questions  arise  among  enlightened  friends  of 
the  Union,  as  to  the  duty  of  watching  over  and  oppos- 
ing every  infraction  of  those  principles  which  consti- 
tute its  basis,  and  a  faithful  observance  of  which  can 
alone  secure  its  existence,  and  the  public  happiness! 
thereon  depending. 

The  third  resolution  is  in  the  words  following : 

"That  this  Assembly  doth  explicitly  and  peremp- 
torily declare,  that  it  views  the  powers  of  the  Federal 
Government  as  resulting  from  the  compact,  to  which 
the  States  are  parties,  as  limited  by  the  plain  sense 
and  intention  of  the  instrument  constituting  that  com- 
pact— as  no  further  valid  than  they  are  authorized  by 
the  grants  enumerated  in  that  compact;  and  that  in 
case  of  a  deliberate,  palpable  and  dangerous  exercise 
of  other  powers,  not  granted  by  the  said  compact,  the 
States  who  are  parties  thereto  have  the  right,  and  are 
in  duty  bound,  to  interpose,  for  arresting  the  progress 
of  the  evil,  and  for  maintaining  within  their  respec- 


52  A  STUDY  IN 

tive  limits  the  authorities,  rights  and  liberties  apper- 
j  taining  to  them," 

On  this  resolution  the  committee  have  bestowed 
all  the  attention  which  its  importance  merits;  they 
have  scanned  it  not  merely  with  a  strict,  but  with  a 
severe  eve;  and  they  feel  confidence  in  pronouncing 
that,  in  its  just  and  fair  construction,  it  is  unexcep- 
tionally  true  in  its  several  positions,  as  well  as  con- 
stitutionally and  conclusive  in  its  inferences. 

The  resolution  declares;  first,  that  "it  views  the 
powers  of  the  Federal  Government  as  resulting  from 
the  compact  to  which  the  States  are  parties" ;  in 
other  words,  that  the  Federal  powers  are  derived 
from  the  Constitution,  and  that  the  Constitution  is  a 
compact  to  which  the  States  are  parties. 

Clear  as  the  position  must  seem,  that  the  Federal 
powers  are  derived  from  the  Constitution,  and  from 
that  alone,  the  committee  are  not  unapprised  of  a 
late  doctrine,  which  opens  another  source  of  Federal 
powers  not  less  extensive  and  important  than  it  is 
new  and  unexpected.  The  examination  of  this  doc- 
trine will  be  most  conveniently  connected  with  a  re- 
view of  a  succeeding  resolution.  The  committee 
satisfy  themselves  here  with  briefly  remarking  that,  in 
all  the  contemporary  discussions  and  comments  which 
the  Constitution  underwent,  it  was  constantly  justi- 
fied and  recommended  on  the  ground  that  the  powers 
not  given  to  the  government  were  withheld  from  it; 
and,  that  if  any  doubt  could  have  existed  on  this  sub- 
ject under  the  origrinal  text  of  the  Constitution,  it  is 


STATE  RIGHTS  53 

removed,  as  far  as  words  could  remove  it,  by  the 
Twelfth  amendment,  now  a  part  of  the  Constitution, 
which  expressly  declares,  "that  the  powers  not  dele- 
gated to  the  United  States,  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people." 

The  other  position  involved  in  this  branch  of  the 
resolution,  namely,  that  "the  States  are  parties  to  the 
Constitution  or  compact,"  is,  in  the  judgment  of  the 
committee,  equally  free  from  objection.  It  is  indeed 
true,  that  the  term  "States"  is  sometimes  used  in  a 
vague  sense,  and  sometimes  in  different  senses,  ac^ 
cording  to  the  subject  to  which  it  is  applied.  Thus, 
it  sometimes  means  the  separate  sections  of  territory 
occupied  by  the  political  societies  within  each ;  some- 
times the  particular  governments  established  by  those 
societies;  sometimes  those  societies  as  organized  into 
those  particular  governments ;  and  lastly,  it  means 
the  people  composing  those  political  societies,  in  their 
highest  sovereign  capacity.  Although  it  might  be 
wished  that  the  perfection  of  language  admitted  less 
diversity  in  the  signification  of  the  same  words,  yet 
little  inconvenience  is  produced  by  it  where  the  true 
sense  can  be  collected  with  certainty  from  the  differ- 
ent applications.  In  the  present  instance,  whatever 
different  construction  of  the  term  "States"  in  the 
resolution  may  have  been  entertained,  all  will  at  least 
concur  in  that  last  mentioned ;  because  in  that  sense 
the  Constitution  was  submitted  to  the  "States";  in 
that  sense  the  "States"  ratified  it ;  and  in  that  sense 


64  A  STUDY  IN 

of  the  term  "States,"  they  are  consequently  parties  to 
the  compact  from  which  the  powers  of  the  Federal 
Government  result. 

The  next  position  is,  that  the  General  Assembly 
views  the  powers  of  the  Federal  Government,  "as 
limited  by  the  plain  sense  and  intention  of  the  instru- 
ment constituting  that  compact,"  and  "as  no  farther 
valid  than  they  are  authorized  by  the  grants  therein 
enumerated."  It  does  not  seem  possible  that  any 
just  objection  can  lie  against  either  of  these  clauses. 
The  first  amounts  merely  to  a  declaration  that  tho 
compact  ought  to  have  the  interpretation  plainly 
intended  by  the  parties  to  it;  the  other  to  a  declara- 
tion that  it  ought  to  have  the  execution  and  effect 
intended  by  them.  If  the  powers  granted  be  valid,  it 
is  solely  because  they  are  granted ;  and  if  the  granted 
powers  are  valid  because  gTanted,  all  other  powers 
not  granted  must  not  be  valid. 

The  resolution  having  taken  this  view  of  the  Fed- 
eral compact,  proceeds  to  infer,  "That  in  case  of  a 
deliberate,  palpable,  and  dangerous  exercise  of  other 
powers  not  granted  by  the  said  compact,  the  States, 
who  are  parties  thereto,  have  the  right  and  are  in 
duty  bound  to  interpose  for  arresting  the  progress  of 
the  evil,  and  for  maintaining  within  their  respective 
limits  the  authorities,  rights,  and  liberties  appertain- 
ing to  them." 

It  appears  to  your  committee  to  be  a  plain  prin- 
ciple founded  in  common  sense,  illustrated  by  common 
practice,  and  essential  to  the  nature  of  compacts — 


STATE  EIGHTS  55 

that,  where  resort  can  he  had  to  no  tribunal  superior 
to  the  authority  of  the  parties,  the  parties  themselves 
must  be  the  rightful  judges  in  the  last  resort,  whether 
the  bargain  made  has  been  pursued  or  violated.  The 
Constitution  of  the  United  States  was  framed  by  the 
sanction  of  the  States,  given  by  each  in  its  sovereign 
capacity.  It  adds  to  the  stability  and  dignity,  as  well 
as  to  the  authority  of  the  Constitution,  that  it  rests  on 
this  legitimate  and  solid  foundation.  The  States, 
then,  being  the  parties  to  the  constitutional  compact, 
and  in  their  sovereign  capacity,  it  follows  of  neces- 
sity, that  there  can  be  no  tribunal  above  their  au- 
thority to  decide  in  the  last  resort  whether  the  com- 
pact made  by  them  be  violated;  and,  consequently, 
that,  as  the  parties  to  it,  they  must  themselves  decide 
in  the  last  resort  such  questions  as  may  be  of  sufficient 
magnitude  to  require  their  interposition. 

It  does  not  follow,  however,  that  because  the  States, 
as  sovereign  parties  to  their  constitutional  compact, 
must  ultimately  decide  whether  it  has  been  violated, 
that  such  a  decision  ought  to  be  interposed,  either  in 
a  hasty  manner,  or  on  doubtful  and  inferior  occasions. 
Even  in  the  case  of  ordinary  conventions  between 
different  nations,  where,  by  the  strict  rule  of  inter- 
pretation, a  breach  of  a  part  may  be  deemed  a  breach 
of  the  whole ;  every  part  being  deemed  a  condition  of 
every  other  part,  and  of  the  whole,  it  is  always  laid 
down  that  the  breach  must  be  both  wilful  and  material 
to  justify  an  application  of  the  rule.  But  in  the  case 
of  an  intimate  and  constitutional  union,  like  that  of 


56  A  STUDY  IN 

the  United  States,  it  is  evident  that  the  interposition 
of  the  parties,  in  their  sovereign  capacity,  can  be 
called  for  bj  occasions  only,  deeply  and  essentially 
affecting  the  vital  principles  of  their  political  system. 

The  resolution  has,  accordingly,  guarded  against 
any  misapprehension  of  its  object,  by  expressly  re- 
quiring for  such  an  interposition,  "the  case  of  a 
deliberate,  palpable,  and  dangerous  breach  of  the 
Constitution,  by  the  exercise  of  powers  not  granted 
by  it,"  It  must  be  a  case  not  of  a  light  and  transient 
nature,  but  of  a  nature  dangerous  to  the  great  pur- 
poses for  which  the  Constitution  was  established.  It 
must  be  a  case,  moreover,  not  obscure  or  doubtful  in 
its  construction,  but  plain  and  palpable.  Lastily,  it 
must  be  a  case  not  resulting  from  a  partial  considera- 
tion or  hasty  determination  ;  but  a  case  stamped  with 
a  final  consideration  and  deliberate  adherence.  It  is 
not  necessary,  because  the  resolution  does  not  require, 
that  the  question  should  be  discussed,  how  far  the 
exercise  of  any  particular  power,  ungranted  by  the 
Constitution,  would  justify  the  interposition  of  the 
parties  to  it.  As  cases  might  easily  be  stated,  which 
none  would  contend  ought  to  fall  within  that  descrip- 
tion— cases,  on  the  other  hand,  might  with  equal  ease 
be  stated  so  flagrant  and  so  fatal  as  to  unite  every 
opinion  in  placing  them  within  the  description. 

But  the  resolution  has  done  more  than  guard 
against  misconstruction,  by  expressly  referring  to 
cases  of  a  deliberate,  palpable  and  dangerous  nature. 
It  specifies  the  object  of  the  interposition  which  it 


STATE  EIGHTS  57 

contemplates,  to  be  solely  that  of  arresting  the  prog- 
ress of  the  evil  of  usurpation,  and  of  maintaining  the 
authorities,  rights  and  liberties  appertaining  to  the 
States,  as  parties  to  the  Constitution. 

From  this  view  of  the  resolution,  it  would  seem 
inconceivable  that  it  can  incur  any  just  disapproba- 
tion from  those  who,  laying  aside  all  momentary 
impressions,  and  recollecting  the  genuine  source  and 
objects  of  the  Federal  Constitution,  shall  candidly 
and  accurately  interpret  the  meaning  of  the  General 
Assembly.  If  the  deliberate  exercise  of  dangerous' 
powers,  palpably  withheld  by  the  Constitution,  could 
not  justify  the  parties  to  it,  in  interposing  even  so  far 
as  to  arrest  the  progress  of  the  evil,  and  thereby  to 
preserve  the  Constitution  itself,  as  well  as  to  provide 
for  the  safety  of  the  parties  to  it,  there  would  be  an 
end  to  all  relief  from  usurped  power,  and  a  direct 
subversion  of  the  rights  specified  or  recognized  under 
all  the  State  Constitutions,  as  well  as  a  plain  denial 
of  the  fundamental  principle  on  which  our  inde- 
pendence itself  was  declared. 

But  it  is  objected,  that  the  judicial  authority  is  to 
be  regarded  as  the  sole  expositor  of  the  Constitution 
in  the  last  resort ;  and  it  may  be  asked  for  what  rea- 
son, the  declaration  by  the  General  Assembly,  suppos- 
ing it  to  be  theoretically  true,  could  be  required  at 
the  present  day,  and  in  so  solemn  a  manner. 

On  this  objection  it  might  be  observed:  first,  that 
there  may  be  instances  of  usurped  power,  which  the 
forms  of  the  Constitution  would  never  draw  within 


58  A  STUDY  IN 

the  control  of  the  judicial  department;  secondly,  that 
if  the  decision  of  the  judiciary  be  raised  above  the 
authority  of  the  sovereign  parties  to  the  Constitution, 
the  decisions  of  the  other  departments,  not  carried  by 
the  forms  of  the  Constitution  before  the  judiciary, 
must  be  equally  authoritative  and  final  with  the  deci- 
sions of  that  department.  But  the  proper  answer 
to  the  objection  is,  that  the  resolution  of  the  General 
Assembly  relates  to  those  great  and  extraordinary 
cases,  in  which  all  the  forms  of  the  Constitution  may 
prove  ineffectual  against  infractions  dangerous  to  the 
essential  rights  of  the  parties  to  it.  The  resolution 
supposes  that  dangerous  powers  not  delegated,  may 
not  only  be  usurped  and  executed  by  the  other  depart- 
ments, but  that  the  judicial  department,  also,  may 
exercise  or  sanction  dangerous  powers  beyond  the 
grant  of  the  Constitution ;  and,  consequently,  that  the 
ultimate  right  of  the  parties  to  the  Constitution,  to 
judge  whether  the  compact  has  been  dangerously 
violated,  must  extend  to  violations  by  one  delegated 
authority,  as  well  as  by  another ;  by  the  judiciary,  as 
well  as  by  the  executive  or  the  legislative. 

However  true,  therefore,  it  may  be  that  the  judicial 
department  is,  in  all  questions  submitted  to  it  by  the 
forms  of  the  Constitution,  to  decide  in  the  last  resort, 
this  resort  must  necessarily  be  deemed  the  last  in 
relation  to  the  authorities  of  the  other  departments 
of  the  government ;  not  in  relation  to  the  rights  of  the 
parties  to  the  constitutional  compact,  from  which  the 
judicial  as  well  as  the  other  departments  hold  their 


STATE  EIGHTS  59 

delegated  trusts.  On  any  other  hypothesis,  the  dele- 
gation of  judicial  power  would  annul  the  authority 
delegating  it ;  and  the  concurrence  of  this  department 
with  the  others  in  usurped  powers,  might  subvert  for- 
ever, and  beyond  the  possible  reach  of  any  rightful 
remedy,  the  very  Constitution,  which  all  were  insti- 
tuted to  preserve. 

The  truth  declared  in  the  resolution  being  estab- 
lished, the  expediency  of  making  the  declaration  at 
the  present  day,  may  safely  be  left  to  the  temperate 
consideration  and  candid  judgment  of  the  American 
public.  It  will  be  remembered  that  a  frequent  recur- 
rence to  fundamental  principles  is  solemnly  enjoined 
by  most  of  the  State  Constitutions,  and  particularly 
by  our  own,  as  a  necessary  safeguard  against  the 
danger  of  degeneracy  to  which  republics  are  liable, 
as  well  as  other  governments,  though  in  a  less  degree 
than  others.  And  a  fair  comparison  of  the  political 
doctrines  not  unfrequent  at  the  present  day,  with 
those  which  characterized  the  epoch  of  our  Revolu- 
tion, and  which  form  the  basis  of  our  republican 
Constitutions,  will  best  determine  whether  the  declar- 
atory recurrence  here  made  to  those  principles,  ought 
to  be  viewed  as  unseasonable  and  improper,  or  as  a 
vigilant  discharge  of  an  important  duty.  The  au- 
thority of  Constitutions  over  governments,  and  of  the 
sovereignty  of  the  people  over  Constitutions,  are 
truths  which  are  at  all  times  necessary  to  be  kept  in 
mind ;  and  at  no  time,  perhaps,  more  necessary  than 
at  present. 


60  A  STUDY  IN 

The  fourth  resolution  stands  as  follows : 

"That  the  General  Assembly  doth  also  express  ita 
deep  regret  that  a  spirit  has  in  sundry  instances  been 
manifested  by  the  Federal  Government  to  enlarge  its 
powers  by  forced  constructions  of  the  constitutional 
charter  which  defines  them;  and  that  indications 
have  appeared  of  a  design  to  expound  certain  general 
phrases  (which,  having  been  copied  from  the  very 
limited  grant  of  powers  in  the  former  Articles  of 
Confederation,  were  the  less  liable  to  be  miscon- 
strued), so  as  to  destroy  the  meaning  and  effect  of  the 
particular  enumeration  which  necessarily  explains, 
and  limits  the  general  phrase;  and  so  as  to  consoli- 
date the  States  by  degrees  into  one  sovereignty,  the 
obvious  tendency  and  inevitable  result  of  which 
would  be  to  transform  the  present  republican  system 
of  the  United  States  into  an  absolute  or  at  least  a 
mixed  monarchy." 

The  first  question  here  to  be  considered  is,  whether 
a  spirit  has  in  sundry  instances  been  manifested  by 
the  Federal  Government  to  enlarge  its  powers  by 
forced  constructions  of  the  constitutional  charter. 

The  General  Assembly  having  declared  their 
opinion,  merely,  by  regretting  in  general  terms,  that 
forced  constructions  for  enlarging  the  Federal  powers 
have  taken  place,  it  does  not  appear  to  the  committee 
necessary  to  go  into  a  specification  of  every  instance 
to  which  the  resolution  may  allude.  The  Alien  and 
Sedition  acts  being  particularly  named  in  a  succeed- 
ing resolution   are   of   course   to   be  understood   as 


STATE  EIGHTS  61 

included  in  the  allusion.  Omitting  others  which 
have  less  occupied  public  attention,  or  been  less  exten- 
sively regarded  as  unconstitutional,  the  resolution 
may  be  presumed  to  refer  particularly  to  the  Bank 
Law,  which  from  the  circumstances  of  its  passage,  as 
well  as  the  latitude  of  construction  on  which  it  is 
founded,  strikes  the  attention  with  singular  force, 
and  the  carriage  tax,  distinguished  also  by  circum- 
stances in  its  history  having  a  similar  tendency. 
Those  instances  alone,  if  resulting  from  forced  con- 
struction, and  calculated  to  enlarge  the  powers  of 
the  Federal  Government,  as  the  committee  cannot 
but  conceive  to  be  the  case,  sujfficiently  warrant  this 
part  of  the  resolution.  The  committee  have  not 
thought  it  incumbent  on  them  to  extend  their  atten- 
tion to  laws  which  have  been  objected  to,  rather  as 
varying  the  constitutional  distribution  of  powers  in 
the  Federal  Government,  than  as  an  absolute  enlarge- 
ment of  them;  because  instances  of  this  sort,  how- 
ever important  in  their  principles  and  tendencies,  do 
not  appear  to  fall  strictly  within  the  text  under 
review. 

The  other  questions  presenting  themselves  are — 
1.  Whether  indications  have  appeared  of  a  design 
to  expound  certain  general  phrases  copied  from  thq 
"Articles  of  Confederation."  so  as  to  destroy  the 
effect  of  the  particular  enumeration  explaining  and 
limiting  their  meanins:.  2.  Whether  this  exDOsition 
would  by  degrees  consolidate  the  States  into  one 
sovereignty.     3.   Whether  the  tendency  and  result  of 


62  A  STUDY  IN 

this  consolidation  would  be  to  transfonn  the  repub- 
lican system  of  the  United  States  into  a  monarchy. 

1.  The  general  phrases  here  meant  must  be  those 
"of  providing  for  the  common  defence  and  general 
welfare." 

In  the  "Articles  of  Confederation"  the  phrases  are 
used  as  follows,  in  Art.  VIII :  "All  charges  of  war, 
and  all  other  expenses  that  shall  be  incurred  for  the 
common  defence  and  general  welfare,  and  allowed 
by  the  United  States  in  Congress  assembled,  shall  be 
defrayed  out  of  a  common  treasury,  which  shall  be 
supplied  by  the  several  States,  in  proportion  to  the 
value  of  all  land  within  each  State,  granted  to,  or  sur- 
veyed for  any  person,  as  such  land  and  the  buildings 
and  improvements  thereon  shall  be  estimated,  accord- 
ing to  such  mode  as  the  United  States  in  Congress 
assembled,  shall  from  time  to  time  direct  and 
appoint." 

In  the  existing  Constitution  they  make  the  follow- 
ing part  of  Sec.  8 :  "The  Congress  shall  have  power 
to  lay  and  collect  taxes,  duties,  imposts  and  excises, 
to  pay  the  debts,  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States." 

This  similarity  in  the  use  of  these  phrases  in  the 
two  great  Federal  charters,  might  well  be  considered 
as  rendering  their  meaning  less  liable  to  be  miscon- 
strued in  the  latter:  because  it  will  scarcely  be  said, 
that  in  the  former  they  were  ever  understood  to  be 
either  a  general  grant  of  the  power,  or  to  authorize 
the  requisition  or  application  of  money  by  the  old 


STATE  EIGHTS  63 

Congress  to  the  common  defence  and  general  wel- 
fare, except  in  cases  afterwards  enumerated,  which 
explained  and  limited  their  meaning ;  and  if  such  was 
the  limited  meaning  attached  to  these  phrases  in  the 
very  instrument  revised  and  remodelled  by  the  pres- 
ent Constitution,  it  can  never  be  supposed  that  when 
copied  into  this  Constitution,  a  different  meaning 
ought  to  be  attached  to  them. 

That,  notwithstanding  this  remarkable  security 
against  misconstruction,  a  design  has  been  indicated 
to  expound  these  phrases  in  the  Constitution,  so  as  to 
destroy  the  effect  of  the  particular  enumeration  of 
powers  by  which  it  explains  and  limits  them,  must 
have  fallen  under  the  observation  of  those  who  have 
attended  to  the  course  of  public  transactions.  Not  to 
multiply  proofs  on  this  subject,  it  will  suffice  to  refer 
to  the  debates  of  the  Federal  legislature,  in  which 
arguments  have  on  different  occasions  been  drawn, 
with  apparent  effect,  from  these  phrases,  in  their 
indefinite  meaning. 

To  these  indications  might  be  added,  without  look- 
ing farther,  the  official  report  on  manufactures  by  the 
late  Secretary  of  the  Treasury,  made  on  the  5th  of 
December,  1791 ;  and  the  report  of  a  Committee  of 
Congress,  in  January,  1797,  on  the  promotion  of 
agriculture.  In  the  first  of  these  it  is  expressly  con- 
tended to  belong  "to  the  discretion  of  the  National 
Legislature  to  pronounce  upon  the  objects  which  con- 
cern the  general  welfare,  and  for  which,  under  that 
description,  an  appropriation  of  money  is  requisite 


64  A  STUDY  IN 

and  proper.  And  there  seems  to  be  no  room  for  a 
doubt,  that  whatever  concerns  the  general  interests 
of  learning,  of  agriculture,  of  manufactures,  and  of 
commerce,  is  within  the  sphere  of  National  Councils, 
as  far  as  regards  an  application  of  money."  The  lat- 
ter report  assumes  the  same  latitude  of  power  in  the 
National  Councils,  and  applies  it  to  the  encourage- 
ment of  agriculture,  by  means  of  a  society  to  be  estab- 
lished at  the  seat  of  government.  Although  neither 
of  these  reports  may  have  received  the  sanction  of  a 
law  carrying  it  into  effect;  yet,  on  the  other  hand, 
the  extraordinary  doctrine  contained  in  both  has 
passed  without  the  slightest  positive  mark  of  disap- 
probation from  the  authority  to  which  it  was  ad- 
dressed. 

Now,  whether  the  phrases  in  question  be  construed 
to  authorize  every  measure  relating  to  the  common 
defence  and  general  welfare,  as  contended  by  some; 
or  every  measure  only  in  which  there  might  be  an 
application  of  money,  as  suggested  by  the  caution  of 
others;  the  effect  must  substantially  be  the  same,  in 
destroying  the  import  and  force  of  the  particular 
enumeration  of  powers  which  follow  these  general 
phrases  in  the  Constitution.  For,  it  is  evident,  that 
there  is  not  a  single  power  whatever  which  may  not 
have  some  reference  to  the  common  defence  or  the  gen- 
eral welfare ;  nor  a  power,  of  any  magnitude,  which, 
in  its  exercise,  does  not  involve  or  admit  an  applica- 
tion of  money.  The  government,  therefore,  which 
possesses  power  in  either  one  or  other  of  these  extents 


STATE  EIGHTS  65 

is  a  government  without  the  limitations  formed  by  a 
particular  enumeration  of  powers ;  and  consequently, 
the  meaning  and  effect  of  this  particular  enumeration 
is  destroyed  by  the  exposition  given  to  these  general 
phrases. 

This  conclusion  will  not  be  affected  by  an  attempt 
to  qualify  the  power  over  the  "general  welfare,"  by 
referring  it  to  cases  where  the  general  welfare  is 
beyond  the  reach  of  the  separate  provisions  by  the 
individual  States;  and  leaving  to  these  their  juris- 
dictions in  cases,  to  which  their  separate  provisions 
may  be  competent.  For,  as  the  authority  of  the  indi- 
vidual States  must  in  all  cases  be  incompetent  to 
general  regulations  operating  through  the  whole,  the 
authority  of  the  United  States  would  be  extended  to 
every  object  relating  to  the  general  welfare,  which 
might,  by  any  possibility,  be  provided  for  by  the  gen- 
eral authority.  This  qualifying  construction,  there- 
fore, would  have  little,  if  any,  tendency  to  circum- 
scribe the  power  claimed  under  the  latitude  of  the 
term  "general  welfare." 

The  true  and  fair  construction  of  this  expression, 
both  in  the  original  and  existing  Federal  compacts, 
appears  to  the  committee  too  obvious  to  be  mistaken. 
In  both,  the  Congress  is  authorized  to  provide  money 
for  the  common  defence  and  general  welfare.  In 
both,  is  subjoined  to  this  authority  an  enumeration 
of  the  cases  to  which  their  powers  shall  extend. 
Money  cannot  be  applied  to  the  general  welfare  other- 
wise than  by  an  application  of  it  to  some  particular 


66  A  STUDY  IN 

measure  conducive  to  the  general  welfare.  When- 
ever, therefore,  money  has  been  raised  by  the  general 
authority,  and  is  to  be  applied  to  a  particular  measure, 
a  question  arises  whether  the  particular  measure  be 
within  the  enumerated  authorities  vested  in  Congi-ess. 
If  it  be,  the  money  requisite  for  it  may  be  applied  to 
it;  if  it  be  not,  no  such  application  can  be  made. 
This  fair  and  obvious  interpretation  coincides  with, 
and  is  enforced  by,  the  clause  in  the  Constitution, 
which  declares,  that  "no  money  shall  be  drawn  from 
the  treasury  but  in  consequence  of  appropriations 
made  by  law."  An  appropriation  of  money  to  the 
general  welfare  would  be  deemed  rather  a  mockery 
than  an  observance  of  this  constitutional  injunction. 

2.  Whether  the  exposition  of  the  general  phrases 
here  combated  would  not,  by  degrees,  consolidate 
the  States  into  one  sovereignty  is  a  question,  concern- 
ing which  the  committee  can  perceive  little  room  for 
difference  of  opinion.  To  consolidate  the  States  into 
one  sovereignty,  nothing  more  can  be  wanted  than  to 
supersede  their  respective  sovereignties  in  the  cases 
reserved  to  them,  by  extending  the  sovereignty  of  the 
United  States,  to  all  cases  of  the  "general  welfare," 
that  is  to  say,  to  all  cases  whatever. 

3.  That  the  obvious  tendency  and  inevitable  result 
of  a  consolidation  of  the  States  into  one  sovereignty, 
would  be  to  transform  the  republican  system  of  the 
United  States  into  a  monarchy,  is  a  point  which 
seems  to  have  been  sufficiently  decided  by  the  general 
sentiment  of  America.     In  almost  every  instance  of 


STATE  EIGHTS  67 

discussion  relating  to  the  consolidation  in  question, 
its  certain  tendency  to  pave  the  way  to  monarchy 
seems  not  to  have  heen  contested.  The  prospect  of 
such  a  consolidation  has  formed  the  only  topic  of 
controversy.  It  would  be  unnecessary,  therefore,  for 
the  committee  to  dwell  long  on  the  reasons  which  sup- 
port the  position  of  the  General  Assembly.  It  may 
not  be  improper,  however,  to  remark  two  conse- 
quences, evidently  flowing  from  an  extension  of  the 
Federal  power  to  every  subject  falling  within  the 
idea  of  the  "general  welfare." 

One  consequence  must  be  to  enlarge  the  sphere  of 
discretion  allotted  to  the  Executive  Magistrate.  Even 
within  the  legislative  limits  properly  defined  by  the 
Constitution,  the  difficulty  of  accommodating  legal 
regulations  to  a  country  so  great  in  extent,  and  so 
various  in  its  circumstances,  has  been  much  felt ;  and 
has  led  to  occasional  investments  of  power  in  the 
Executive,  which  involve  perhaps  as  large  a  portion 
of  discretion  as  can  be  deemed  consistent  with  the 
nature  of  the  Executive  trust.  In  proportion  as  the 
objects  of  legislative  care  might  be  multiplied,  would 
the  time  allowed  for  each  be  diminished,  and  the 
difficulty  of  providing  uniform  and  particular  regula- 
tions for  all  be  increased.  Erom  these  sources  would 
necessarily  ensue  a  greater  latitude  to  the  agency  of 
that  department  which  is  always  in  existence,  and 
which  could  best  mould  regulations  of  a  general 
nature,  so  as  to  suit  them  to  the  diversity  of  particu- 
lar situations.    And  it  is  in  this  latitude,  as  a  supple- 


68  A  STUDY  IN 

ment  to  the  deficiency  of  the  laws,  that  the  degree  of 
executive  prerogative  materially  consists. 

The  other  consequence  would  be  that  of  an  exces- 
sive augmentation  of  the  officers,  honors,  and  emolu- 
ments depending  on  the  Executive  will.  Add  to  the 
present  legitimate  stock  all  those  of  every  description 
which  a  consolidation  of  the  States  would  take  from 
them  and  turn  over  to  the  Federal  Government,  and 
the  patronage  of  the  Executive  would  necessarily  be 
as  much  swelled  in  this  case  as  its  prerogative  would 
be  in  the  other.  This  disproportionate  increase  of 
prerogative  and  patronages  must  evidently  either 
enable  the  Chief  Magistrate  of  the  Union,  by  quiet 
means,  to  secure  his  re-election  from  time  to  time,  and 
finally,  to  regulate  the  succession  as  he  might  please ; 
or,  by  giving  so  transcendent  an  importance  to  the 
office,  would  render  the  elections  to  it  so  violent  and 
corrupt  that  the  public  voice  itself  might  call  for  an 
hereditary,  in  place  of  an  elective  succession.  Which- 
ever of  these  events  might  follow,  the  transforma- 
tion of  the  republican  system  of  the  United  States 
into  a  monarchy,  anticipated  by  the  General  Assem- 
bly from  a  consolidation  of  the  States  into  one 
sovereignty,  would  be  equally  accomplished ;  and 
whether  it  w^ould  be  only  a  mixed  or  an  absolute  mon- 
archy might  depend  on  too  many  contingencies  to 
admit  of  any  certain  foresight. 

The  resolution  next  in  order  is  contained  in  the 
following  terms : 
.  "That   the   General   Assembly   doth   particularly 


STATE  RIGHTS  69 

protest  against  the  palpable  and  alarming  infractions 
of  the  Constitution,  in  the  two  late  cases  of  the  'Alien 
and  Sedition  Acts/  passed  at  the  last  session  of 
Congi-ess ;  the  first  of  which  exercises  a  power  no- 
where delegated  to  the  Federal  Government;  and 
which,  by  uniting  legislative  and  judicial  powers  to 
those  of  executive,  subverts  the  general  principles  of 
free  govermnent,  as  well  as  the  particular  organiza- 
tion and  positive  provisions  of  the  Federal  Constitu- 
tion; and  the  other  of  which  acts  exercises,  in  like 
manner,  a  power  not  delegated  by  the  Constitution, 
but,  on  the  contrary,  expressly  and  positively  for- 
bidden by  one  of  the  amendments  thereto — a  power 
which,  more  than  any  other,  ought  to  produce  uni- 
versal alarm,  because  it  is  levelled  against  the  right 
of  freely  examining  public  characters  and  measures, 
and  of  free  communication  among  the  people  thereon, 
which  has  ever  been  justly  deemed  the  only  effectual 
guardian  of  every  other  right," 

The  subject  of  this  resolution  having,  it  is  pre- 
sumed, more  particularly  led  the  General  Assembly 
into  the  proceedings  which  they  communicated  to 
the  other  States,  and  being  in  itself  of  peculiar  im- 
portance, it  deserves  the  most  critical  and  faithful 
investigation ;  for  the  length  of  which  no  apology  will 
be  necessary. 

The  subject  divides  itself  into, — 

First,  the  "Alien  Act." 

Secondly,  the  "Sedition  Act." 

Of  the  "Alien  Act,"  it  is  affirmed  by  the  resolu- 


70  A  STUDY  m 

tion — 1.  That  it  exercises  a  power  nowhere  delegated 
to  the  Federal  Government;  2.  That  it  unites  legis- 
lative and  judicial  powers  to  those  of  the  executive; 
3.  That  this  union  of  powers  subverts  the  general 
principles  of  free  government;  4.  That  it  subverts 
the  particular  organization  and  positive  provisions  of 
the  Federal  Constitution. 

In  order  to  clear  tlie  way  for  a  correct  view  of  the 
first  position,  several  observations  will  be  premised. 

In  the  first  place,  it  is  to  be  borne  in  mind  that,  it 
being  a  characteristic  feature  of  the  Federal  Consti- 
tution, as  it  was  originally  ratified,  and  an  amend- 
ment thereto  having  precisely  declared,  "that  the 
powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people/ 
it  is  incumbent  in  this,  as  in  every  other  exercise  of 
power  by  the  Federal  Government,  to  prove  from  the 
Constitution  that  it  grants  the  particular  power 
exercised. 

The  next  observation  to  be  made  is,  that  much 
confusion  and  fallacy  have  been  thrown  in  to  the 
question  by  blending  the  two  cases  of  aliens,  mem- 
bers of  a  hostile  nation;  and  aliens,  members  of 
friendly  nations.  These  two  cases  are  so  obviously 
and  so  essentially  distinct,  that  it  occasions  no  little 
surprise  that  the  distinction  should  have  been  dis- 
regarded ;  and  the  surprise  is  so  much  the  greater,  as 
it  appears  that  the  two  cases  are  actually  distin- 
guished by  two  separate  acts  of  Congress,  passed  at 


STATE  EIGHTS  Yl 

the  same  session,  and  comprised  in  tlie  same  publica- 
tion; the  one  providing  for  the  case  of  "alien  ene- 
mies"; and  the  other  "concerning  aliens"  indis- 
criminately, and  consequently  extending  to  aliens 
of  every  nation  in  peace  and  amity  with  the  United 
States.  With  respect  to  alien  enemies  no  doubt  has 
been  intimated  as  to  the  Federal  authority  over  them ; 
the  Constitution  having  expressly  delegated  to  Con- 
gress the  power  to  declare  war  against  any  nation, 
and  of  course  to  treat  it  and  all  its  members  as 
enemies.  With  respect  to  aliens  who  are  not  enemies, 
but  members  of  nations  in  peace  and  amity  with  the 
United  States,  the  power  assumed  by  the  Act  of  Con- 
gress is  denied  to  be  constitutional ;  and  it  is  accord- 
ingly against  this  act  that  the  protest  of  the  General 
Assembly  is  expressly  and  exclusively  directed. 

A  third  observation  is  that  were  it  admitted,  as  is 
contended,  that  the  "act  concerning  aliens"  has  for 
its  object  not  a  penal,  but  a  preventive  justice,  it 
would  still  remain  to  be  proved  that  it  comes  within 
the  constitutional  power  of  the  Federal  Legislature ; 
and,  if  within  its  power,  that  the  Legislature  has 
exercised  it  in  a  constitutional  manner.  In  the 
administration  of  preventive  justice,  the  following 
principles  have  been  held  sacred ;  that  some  probable 
ground  of  suspicion  be  exhibited  before  some  judicial 
authority ;  that  it  be  supported  by  oath  or  affirmation ; 
that  the  party  may  avoid  being  thrown  into  confine- 
ment, by  finding  pledges  or  sureties  for  his  legal  con- 
duct   sufficient    in   the    judgment    of    some    judical 


12  A  STUDY  m 

authority;  that  he  may  have  the  benefit  of  a  writ 
of  habeas  corpus,  and  thus  obtain  his  release  if  wrong- 
fully confined ;  and  that  he  may  at  any  time  be  dis- 
charged from  his  recognizance,  or  his  confinement, 
and  restored  to  his  former  liberty  and  rights,  on  the 
order  of  the  proper  judicial  authority,  if  it  shall  see 
sufficient  cause. 

All  these  principles  of  the  only  preventive  justice 
known  to  American  jurisprudence  are  violated  by 
the  Alien  Act.  The  ground  of  suspicion  is  to  be 
judged  of,  not  by  any  judicial  authority,  but  by  the 
Executive  Magistrate  alone.  No  oath  or  affirmation 
is  required.  If  the  suspicion  be  held  reasonable  by 
the  President,  he  may  order  the  suspected  alien  to 
depart  from  the  territory  of  the  United  States,  with- 
out the  opportunity  of  avoiding  the  sentence  by  find- 
ing pledges  for  his  future  good  conduct.  As  the  Presi- 
dent may  limit  the  time  of  departure  as  he  pleases, 
the  benefit  of  the  writ  of  habeas  corpus  may  be  sus- 
pended with  respect  to  the  party,  although  the  Con- 
stitution ordains  that  it  shall  not  be  suspended  unless 
when  the  public  safety  may  require  it,  in  case  of 
Rebellion  or  invasion, — neither  of  which  existed  at 
the  passage  of  the  act;  and  the  party  being,  under 
the  sentence  of  the  President,  either  removed  from 
the  United  States,  or  being  punished  by  imprison- 
ment, or  disqualification  ever  to  become  a  citizen,  on 
conviction  of  not  obeying  the  order  of  removal,  he 
cannot  be  discharged  from  the  proceedings  against 
him,  and  restored  to  the  benefits  of  his  former  situa- 


STATE  EIGHTS  Y3 

tion,  although  the  highest  judicial  authority  should 
see  the  most  sufficient  cause  for  it. 

But,  in  the  last  place,  it  can  never  be  admitted  that 
the  removal  of  aliens,  authorized  by  the  act,  is  to  be 
considered,  not  as  punishment  for  an  offence,  but  as 
a  measure  of  precaution  and  prevention.  If  the  ban- 
ishment of  an  alien  from  a  country  into  which  he  has 
been  invited  as  the  asylum  most  auspicious  to  his 
happiness, — a  country  where  he  may  have  formed 
the  most  tender  connections;  where  he  may  have 
invested  his  entire  property,  and  acquired  property 
of  real  and  permanent,  as  well  as  the  movable  and 
temporary  kind ;  where  he  enjoys,  under  the  laws,  a 
greater  share  of  the  blessings  of  personal  security, 
and  personal  liberty,  than  he  can  elsewhere  hope  for ; 
and  where  he  may  have  nearly  completed  his  proba- 
tionary title  to  citizenship;  if,  moreover,  in  the  exe- 
cution of  the  sentence  against  him,  he  is  to  be  exposed, 
not  only  to  the  ordinary  dangers  of  the  sea,  but  to  the 
peculiar  casualties  incident  to  a  crisis  of  war  and  of 
unusual  licentiousness  on  that  element,  and  possibly 
to  vindictive  purposes,  which  his  emigration  itself 
may  have  provoked ; — if  a  banishment  of  this  sort  be 
not  a  punishment,  and  among  the  severest  of  punish- 
ments, it  will  be  difficult  to  imagine  a  doom  to  which 
the  name  can  be  applied.  And  if  it  be  punishment, 
it  will  remain  to  be  inquired,  whether  it  can  be  con- 
stitutionally inflicted,  on  mere  suspicion,  by  the 
single  will  of  the  Executive  magistrate,  on  persons 
convicted  of  no  personal  offence  against  the  laws  of 


U  A  STUDY  IN 

the  land,  nor  involved  in  any  offence  against  the 
law  of  nations,  charged  on  the  foreign  State  of  which 
they  are  members. 

One  argument  offered  in  justification  of  this  power 
exercised  over  aliens  is,  that,  the  admission  of  them 
into  the  country  being  of  favor,  not  of  right,  the  favor 
is  at  all  times  revocable.  To  this  argument  it  might 
be  answered,  that,  allowing  the  truth  of  the  inference, 
it  would  be  no  proof  of  what  is  required.  A  ques- 
tion would  still  occur  whether  the  Constitution  had 
vested  the  discretionary  power  of  admitting  aliens  in 
the  Federal  government  or  in  the  State  governments. 

But  it  cannot  be  a  true  inference,  that,  because  the 
admission  of  an  alien  is  a  favor,  the  favor  may  be 
revoked  at  pleasure.  A  grant  of  land  to  an  indi- 
vidual may  be  of  favor,  not  of  right ;  but  the  moment 
the  grant  is  made,  the  favor  becomes  a  right,  and 
must  be  forfeited  before  it  can  be  taken  away.  To 
pardon  a  malefactor  may  be  a  favor,  but  the  pardon 
is  not,  on  that  account,  the  less  irrevocable.  To  admit 
an  alien  to  naturalization  is  as  much  a  favor  as  to 
admit  him  to  reside  in  the  country ;  yet  it  cannot  be 
pretended  that  a  person  naturalized  can  be  deprived 
of  the  benefits  any  more  than  a  native  citizen  can  be 
disfranchised. 

Again,  it  is  said  that,  aliens  not  being  parties  to 
the  Constitution,  the  rights  and  privileges  which  it 
secures  cannot  be  at  all  claimed  by  them. 

To  this  reasoning,  also,  it  might  be  answered  that, 
although  aliens  are  not  parties  to  the  Constitution,  it 


STATE  EIGHTS  15 

does  not  follow  that  the  Constitution  has  vested  in 
Congress  an  absolute  power  over  them.  The  parties 
to  the  Constitution  may  have  granted,  or  retained,  or 
modified,  the  power  over  aliens,  without  regard  to 
that  particular  consideration. 

But  a  more  direct  reply  is,  that  it  does  not  follow, 
because  aliens  are  not  parties  to  the  Constitution,  as 
citizens  are  parties  to  it,  that,  whilst  they  actually 
conform  to  it,  they  have  no  right  to  its  protection. 
Aliens  are  not  more  parties  to  the  laws  than  they  are 
parties  to  the  Constitution ;  yet  it  will  not  be  disputed 
that,  as  they  owe,  on  one  hand,  a  temporary  obedi- 
ence, they  are  entitled,  in  return,  to  their  protection 
and  advantage. 

If  aliens  had  no  rights  imder  the  Constitution,  they 
might  not  only  be  banished,  but  even  capitally  pun- 
ished, without  a  jury  or  the  other  incidents  to  a  fair 
trial.  But  so  far  has  a  contrary  principle  been  car- 
ried, in  every  part  of  the  United  States,  that,  except 
on  charges  of  treason,  an  alien  has,  besides  all  the 
common  privileges,  the  special  one  of  being  tried  by 
a  jury,  of  which  one-half  may  be  also  aliens. 

It  is  said,  further,  that,  by  the  law  and  practice  of 
nations,  aliens  may  be  removed,  at  discretion,  for 
offences  against  the  law  of  nations ;  that  Congress  are 
authorized  to  define  and  punish  such  offences ;  and 
that  to  be  dangerous  to  the  peace  of  society  is,  in 
aliens,  one  of  those  offences. 

The  distinction  between  alien  enemies  and  alien 
friends  is  a  clear  and  conclusive  answer  to  this  argu- 


76  A  STUDY  IN 

ment.  Alien  enemies  are  under  the  law  of  nations, 
and  liable  to  be  punished  for  offences  against  it- 
Alien  friends,  except  in  the  single  case  of  public  min- 
isters, are  under  the  municipal  law,  and  must  be  tried 
and  punished  according  to  that  law  only. 

This  argument,  also,  by  referring  the  alien  act  to 
the  power  of  Congress  to  define  and  punish  offences 
against  the  law  of  nations,  yields  the  point  that  the  act 
is  of  a  'penal,  not  merely  of  a  preventive  operation. 
It  must,  in  truth,  be  so  considered.  And  if  it  be  a 
penal  act,  the  punishment  it  inflicts  must  be  justified 
by  some  offence  that  deserves  it. 

Offences  for  which  aliens,  within  the  jurisdiction 
of  a  country,  are  punishable,  are — first,  offences  com- 
mitted by  the  nation  of  which  they  make  a  part,  and 
in  whose  offences  they  are  involved;  secondly,  offences 
committed  by  themselves  alone,  without  any  charge 
against  the  nation  to  which  they  belong.  The  first  is 
the  case  of  alien  enemies ;  the  second,  the  case  of  alien 
friends.  In  the  first  case,  the  offending  nation  can- 
not otherwise  be  punished  than  by  war,  one  of  the 
laws  of  which  authorizes  the  expulsion  of  such  of  its 
members  as  may  be  found  within  the  country  against 
which  the  offence  has  been  committed.  In  the  second 
case — the  offence  being  committed  by  the  individual, 
not  by  his  nation,  and  against  the  municipal  law,  not 
against  the  law  of  nations — the  individual  only,  and 
not  the  nation,  is  punishable;  and  the  punishment 
must  be  conducted  according  to  the  municipal  law, 
not  according  to  the  law  of  nations.    Under  this  view 


STATE  EIGHTS  YY 

of  the  subject,  the  act  of  Congress  for  the  removal 
of  alien  enemies,  being  comformable  to  the  law  of 
nations,  is  justified  by  the  Constitution;  and  the 
"act"  fcr  the  removal  of  alien  friends,  being  repug- 
nant to  the  constitutional  principles  of  municipal 
law,  is  unjustifiable. 

Nor  is  the  act  of  Congress  for  the  removal  of  alien 
friends  more  agreeable  to  the  general  practice  of 
nations  than  it  is  within  the  purview  of  the  law  of 
nations.  The  general  practice  of  nations  distin- 
guishes between  alien  friends  and  alien  enemies.  The 
latter  it  has  proceeded  against,  according  to  the  law 
of  nations,  by  expelling  them  as  enemies.  The 
former  it  has  considered  as  under  a  local  and  tem- 
porary allegiance,  and  entitled  to  a  correspondent 
protection.  If  contrary  instances  are  to  be  found  in 
barbarous  countries,  under  undefined  prerogatives,  or 
amid  revolutionary  dangers,  they  will  not  be  deemed 
fit  precedents  for  the  Government  of  the  United 
States,  even  if  not  beyond  its  constitutional  authority. 

It  is  said  that  Congress  may  grant  letter's  of 
marque  and  reprisal ;  that  reprisals  may  be  made  on 
persons  as  well  as  property ;  and  that  the  removal 
of  aliens  may  be  considered  as  the  exercise,  in  an  in- 
ferior degree,  of  the  general  power  of  reprisal  on 
persons. 

Without  entering  minutely  into  a  question  that 
does  not  seem  to  require  it,  it  may  be  remarked  that 
reprisal  is  a  seizure  of  foreign  persons  or  property, 
with  a  view  to  obtain  that  justice  for  injuries  done 


78  A  STUDY  IN 

by  one  State,  or  its  members,  to  another  State,  or  its 
members,  for  which  a  refusal  of  the  aggressors  re- 
quires such  a  resort  to  force,  under  the  law  of  nations. 
I<t  must  be  considered  as  an  abuse  of  words,  to  call 
the  removal  of  persons  from  a  country  a  seizure,  or 
a  reprisal  on  them ;  nor  is  the  distinction  to  be  over- 
looked between  reprisals  on  persons  within  the  coun- 
try, and  under  the  faith  of  its  laws,  and  on  persons 
out  of  the  country.  But,  laying  aside  these  considera- 
tions, it  iis  evidently  impossible  to  bring  the  Alien 
Act  within  the  power  of  granting  reprisals ;  since  it 
does  not  allege  or  imply  any  injury  received  from 
any  particular  nation,  for  which  this  proceeding 
against  its  members  was  intended  as  a  reparation. 

The  proceeding  is  authorized  against  aliens  of 
every  nation;  of  nations  charged  neither  with  any 
similar  proceedings  against  American  citizens,  non 
with  any  injuries  for  which  justice  might  be  sought, 
in  the  mode  prescribed  by  the  act.  Were  it  true, 
therefore,  that  good  causes  existed  for  reprisals 
against  one  or  more  foreign  nations,  and  that  neither 
the  persons  nor  property  of  its  members,  under  the 
faith  of  our  laws,  could  plead  an  exemption,  the 
operation  of  the  act  ought  to  have  been  limited  to  the 
aliens  among  us  belonging  to  such  nations.  To  license 
reprisals  against  all  nations,  for  aggressions  charged 
on  one  only,  would  be  a  measure  as  contrary  to  every 
principle  of  justice  and  public  law,  as  to  a  wise 
policy,  and  the  universal  practice  of  nations. 

It  is  said  that  the  right  of  removing  aliens  is  an 


STATE  EIGHTS  Y9 

incident  to  the  power  of  war,  vested  in  Congress  hj, 
the  Constitution.  This  is  a  former  argument  in  a 
new  shape  only,  and  is  answered  by  repeating,  that 
the  removal  of  alien  enemies  is  an  incident  to  the 
power  of  war;  that  the  removal  of  alien  friends  is 
not  an  incident  to  the  power  of  war. 

It  is  said  that  Congress  are,  by  the  Constitution,  to 
protect  each  State  against  invasion ;  and  that  the 
means  of  preventing  invasion  are  included  in  the 
power  of  protection  against  it. 

The  power  of  war,  in  general,  having  been  before 
granted  by  the  Constitution,  this  clause  must  either 
be  a  mere  specification  for  greater  caution  and  cer- 
tainty, of  which  there  are  other  examples  in  the 
instrument,  or  be  the  injunction  of  a  duty,  super- 
added to  a  grant  of  the  power.  Under  either  explana- 
tion, it  cannot  enlarge  the  powers  of  Congress  on  the 
subject.  The  power  and  the  duty  to  protect  each 
State  against  an  invading  enemy  would  be  the  same 
under  the  general  power,  if  this  regard  to  the  greater 
caution  had  been  omitted. 

Invasion  is  an  operation  of  war.  To  protect 
against  invasion  is  an  exercise  of  the  power  of  war. 
A  power,  therefore,  not  incident  to  war,  cannot  be 
incident  to  a  particular  modification  of  war;  and  as 
the  removal  of  alien  friends  has  appeared  to  be  no 
incident  to  a  general  state  of  war,  it  cannot  be  inci- 
dent to  a  partial  state,  or  a  particular  modification 
of  war. 

Nor  can  it  ever  be  granted,  that  a  power  to  act  on 


80  A  STUDY  11^ 

a  case,  when  it  actually  occurs,  includes  a  power  over 
all  the  means  that  may  tend  to  prevent  the  occur- 
rence of  the  case.  Such  a  latitude  of  construction 
would  render  unavailing  every  practical  definition 
of  particular  and  limited  powers.  Under  the  idea 
of  preventing  war  in  general,  as  well  as  invasion  in 
particular,  not  only  an  indiscriminate  removal  of  all 
aliens  might  be  enforced,  hut  a  thousand  other  things, 
still  more  remote  from  the  operations  and  precau- 
tions appurtenant  to  war,  might  take  place.  A 
bigoted  or  tyrannical  nation  might  threaten  us  with 
war,  unless  certain  religious  or  political  regulations 
were  adopted  by  us;  yet  it  never  could  be  inferred, 
if  the  regulations  which  would  prevent  war  were 
such  as  Congress  had  otherwise  no  power  to  make, 
that  the  power  to  make  them  would  gTOw  out 
of  the  purpose  they  were  to  answer.  Congress  have 
power  to  suppress  insurrections ;  yet  it  would  not  be 
allowed  to  follow,  that  they  might  employ  all  the 
means  tending  to  prevent  them ;  of  which  a  system 
of  moral  instruction  for  the  ignorant,  and  of  provi- 
dent support  for  the  poor,  might  be  regarded  as 
among  the  most  efficacious. 

One  argument  for  the  power  of  the  General  Gov- 
ernment to  remove  aliens  would  have  been  passed  in 
silence,  if  it  had  appeared  under  any  authority  infe- 
rior to  that  of  a  report  made,  during  the  last  session 
of  Congress,  to  the  House  of  Representatives,  by  a 
committee,  and  approved  by  the  House.  The  doctrine 
on  which  this  argument  is  founded  is  of  so  new  and 


STATE  RIGHTS  81 

so  extraordinary  a  character,  and  strikes  so  radically 
at  the  political  system  of  America,  that  it  is  proper 
to  state  it  in  the  very  words  of  the  report, 

"The  act  (concerning  aliens)  is  said  to  be  uncon- 
stitutional, because  to  remove  aliens  is  a  direct  breach 
of  the  Constitution,  which  provides,  by  the  l^inth 
section  of  the  First  article,  that  the  migration  or 
importation  of  such  persons  as  any  of  the  States  shall 
think  proper  to  admit,  shall  not  be  prohibited  by  the 
Congress  prior  to  the  year  1808." 

Among  the  answers  given  to  this  objection  to  the 
constitutionality  of  the  act,  the  following  very 
remarkable  one  is  extracted: 

"Thirdly,  That,  as  the  Constitution  has  given  to 
the  States  no  power  to  remove  aliens,  during  the 
period  of  the  limitations  under  consideration,  in  the 
meantime,  on  the  construction  assumed,  there  would 
be  no  authority  in  the  country  empowered  to  send 
away  dangerous  aliens  which  cannot  be  admitted." 

The  reasoning  here  used  would  not,  in  any  view, 
be  conclusive;  because  there  are  powers  exercised  by 
most  other  governments  which,  in  the  United  States, 
are  withheld  by  the  people  both  from  the  General 
Government  and  the  State  Governments.  Of  this 
sort  are  many  of  the  powers  prohibited  by  the  declara- 
tions of  rights  prefixed  to  the  Constitutions,  or  by  the 
clauses,  in  the  Constitutions,  in  the  nature  of  such 
declarations.  ]^ay,  so  far  is  the  political  system  of 
the  United  States  distinguishable  from  that  of  other 
countries,  by  the  caution  with  which  powers  are  dele- 


82  A  STUDY  IN 

gated  and  defined,  that,  in  one  very  important  case, 
even  of  commercial  regulation  and  revenue,  the  power 
is  absolutely  locked  up  against  the  hands  of  both  gov- 
ernments. A  tax  on  exports  can  be  laid  by  no  con- 
stitutional authority  whatever.  Under  a  system  thus 
peculiarly  guarded,  there  could  surely  be  no  absurdity 
in  supposing  that  alien  friends — who,  if  guilty  of 
treasonable  machinations,  may  be  punished,  or,  if 
suspected  on  probable  grounds,  may  be  secured  by 
pledges  or  imprisonment,  in  like  manner  with  per- 
manent citizens — were  never  meant  to  be  subjected 
to  banishment  by  an  arbitrary  and  unusual  process, 
either  under  the  one  government  or  the  other. 

But  it  is  not  the  inconclusiveness  of  the  general 
reasoning  in  this  passage  which  chiefly  calls  the  atten- 
tion to  it.  It  is  the  principle  assumed  by  it,  that 
the  powers  held  by  the  States  are  given  to  them  by 
the  Constitution  of  the  United  States ;  and  the  infer- 
ence from  this  principle,  that  the  powers  supposed  to 
be  necessary,  which  are  not  so  given  to  the  State 
governments,  must  reside  in  the  governments  of  the 
United  States. 

The  respect  which  is  felt  for  every  portion  of  the 
constituted  authorities  forbids  some  of  the  reflections 
which  this  singular  paragraph  might  excite ;  and  they 
are  the  more  readily  suppressed,  as  it  may  be  pre- 
sumed, with  justice  perhaps  as  well  as  candor,  that 
inadvertence  may  have  had  its  share  in  the  error.  It 
would  be  unjustifiable  delicacy,  nevertheless,  to  pass 
by  so  portentous  a  claim,  proceeding  from  so  high  an 


STATE  RIGHTS  83 

authority,  without  a  monitory  notice  of  the  fatal  ten- 
dencies with  which  it  would  be  pregnant. 

Lastily,  it  is  said  that  a  law  on  the  same  subject 
with  the  Alien  Act,  passed  bj  this  State  originally  in 
1785,  and  re-enacted  in  1792,  is  a  proof  that  a  sumr 
mary  removal  of  suspected  aliens  was  not  heretofore 
regarded,  by  the  Virginia  Legislature,  as  liable  to  the 
objections  now  urged  against  such  a  measure. 

This  charge  against  Virginia  vanishes  before  the 
simple  remark  that  the  law  of  Virginia  relates  to 
"suspicious  persons,  being  the  subjects  of  any  foreign 
power  or  State  who  shall  have  made  a  declaration 
of  war,  or  actually  commenced  hostilities,  or  from 
whom  the  President  shall  apprehend  hostile  designs" ; 
whereas  the  act  of  Congress  relates  to  aliens,  being 
the  subjects  of  foreign  powers  and  States,  who  have 
neither  declared  war,  nor  commenced  hostilities,  nor 
from  whom  hostile  dangers  are  apprehended. 

2.  It  is  next  affirmed  of  the  Alien  Act  that  it  unites 
legislative,  judicial,  and  executive  powers,  in  the 
hands  of  the  President.  However  difficult  it  may  be 
to  mark,  in  every  case,  with  clearness  and  certainty, 
the  line  which  divides  legislative  power  from  the 
other  departments  of  power,  all  will  agree  that  the 
powers  referred  to  these  departments  may  be  so  gen- 
eral and  undefined  as  to  be  of  a  legislative,  not  of  an 
executive  or  judicial  nature,  and  may  for  that  resaon 
be  unconstitutional.  Details,  to  a  certain  degree,  are 
essential  to  the  nature  and  character  of  a  law;  and 
on  criminal  subjects,  it  is  proper  that  details  should 


84  A  STUDY  IN 

leave  as  little  as  possible  to  the  discretion  of  those 
who  are  to  apply  and  execute  the  law.  If  nothing 
more  were  required,  in  exercising  a  legislative  trust, 
than  a  general  conveyance  of  authority — without  lay- 
ing down  any  precise  rules  by  which  the  authority 
conveyed  should  be  carried  into  effect — it  would  fol- 
low that  the  whole  power  of  legislation  might  be 
transferred  by  the  Legislature  from  itself,  and  proc- 
lamations might  become  substitutes  for  law.  A 
delegation  of  power  in  this  latitude  would  not  be 
denied  to  be  a  union  of  the  different  powers. 

To  determine,  then,  whether  the  appropriate 
powers  of  the  distinct  departments  are  united  by  the 
act  authorizing  the  Executive  to  remove  aliens,  it 
must  be  inquired  whether  it  contains  such  details, 
definitions,  and  rules,  as  appertain  to  the  true  char- 
acter of  a  law ;  especially  a  law  by  which  personal 
liberty  is  invaded,  property  deprived  of  its  value 
to  the  owner,  and  life  itself  indirectly  exposed  to 
danger. 

The  Alien  x\ct  declares  "that  it  shall  be  lawful  for 
the  President  to  order  all  such  aliens  as  he  shall  judge 
dangerous  to  the  peace  and  safety  of  the  United 
States,  or  shall  have  reasonable  ground  to  suspect  are 
concerned  in  any  treasonable  or  secret  machinations 
against  the  government  thereof,  to  depart,"  etc. 

Could  a  power  be  well  given  in  terms  less  definite, 
less  particular,  and  less  precise  ?  To  be  dangerous 
to  the  public  safety — to  be  suspected  of  secret 
machinations    against    the    government — these    can 


STATE  RIGHTS  85 

never  be  mistaken  for  legal  rules  or  certain  defini- 
tions. They  leave  everything  to  the  President.  His 
will  is  the  law. 

But  it  is  not  a  legislative  power  only  that  is  given 
to  the  President.  He  is  to  stand  in  the  place  of  the 
judiciary  also.  His  suspicion  is  the  only  evidence 
which  is  to  convict;  his  order,  the  only  judgment 
which  is  to  be  executed. 

Thus  it  is  the  President  whose  will  is  to  designate 
the  offensive  conduct ;  it  is  his  will  that  is  to  ascertain 
the  individuals  on  whom  it  is  charged ;  and  it  is  his 
will  that  is  to  cause  the  sentence  to  be  executed.  It 
is  rightly  affirmed,  therefore,  that  the  act  unites  legis- 
lative and  judicial  powers  to  those  of  the  Executive. 

3.  It  is  affirmed  that  this  union  of  power  subverts 
the  general  principle  of  free  government. 

It  has  become  an  axiom  in  the  science  of  govern- 
ment, that  a  separation  of  the  legislative,  executive, 
and  judicial  departments  is  necessary  to  the  preserva- 
tion of  public  liberty.  JSTowhere  has  this  axiom  been 
better  understood  in  theory,  or  more  carefully  pur- 
sued in  practice,  than  in  the  United  States. 

4.  It  is  affirmed  that  such  a  union  of  power  sub- 
verts the  particular  organization  and  positive  provi- 
sion of  the  Federal  Constitution. 

According  to  the  particular  organization  of  the 
Constitution  its  legislative  powers  are  vested  in  the 
Congress,  its  executive  powers  in  the  President,  and 
its  judicial  powers  in  a  supreme  and  inferior  tri- 
bunals.    The  union  of  any  of  these  powers,  and  still 


86  A  STUDY  IN 

more  of  all  three,  in  any  one  of  these  departments, 
as  has  been  shown,  to  be  done  by  the  Alien  Act,  must, 
consequently,  subvert  the  constitutional  organization 
of  them. 

That  positive  provisions,  in  the  Constitution,  secur- 
ing to  individuals  the  benefits  of  fair  trial,  are  also 
violated  by  the  union  of  powers,  in  the  Alien  Act, 
necessarily  results  from  the  two  facts,  that  the  act 
relates  to  alien  friends,  and  that  alien  friends,  being 
under  the  municipal  law  only,  are  entitled  to  its  pro- 
tection. 

The  second  object,  against  which  the  resolutions 
protests,  is  the  Sedition  Act. 

Of  this  act  it  is  affirmed — 1.  That  it  exercises,  in 
like  manner,  a  power  not  delegated  by  the  Constitu- 
tion; 2.  That  the  power,  on  the  contrary,  is  ex- 
pressly and  positively  forbidden  by  one  of  the  amend- 
ments to  the  Constitution;  3.  That  this  is  a  power 
which,  more  than  any  other,  ought  to  produce  uni- 
versal alarm,  because  it  is  levelled  against  that  right 
of  freely  examining  public  characters  and  measures, 
and  of  free  communication  thereon,  which  has  ever 
been  justly  deemed  the  only  effectual  guardian  of 
every  other  right. 

1.  That  it  exercises  a  powder  not  delegated  by  the 
Constitution. 

Here,  again,  it  will  be  proper  to  recollect  that  the 
Federal  Government  being  composed  of  powers  spe- 
cifically granted,  with  reservation  of  all  others  to  the 
States  or  to  the  people,  the  positive  authority  under 


STATE  EIGHTS  87 

which  the  Sedition  Act  could  be  passed  must  be  pro- 
duced by  those  who  assert  its  constitutionality.  In 
what  part  of  the  Ctostitution,  then,  is  this  authority 
to  be  found  ? 

Several  attempts  have  been  made  to  answer  thia 
question,  which  will  be  examined  in  their  order.  The 
committee  will  begin  with  one  which  has  filled  them 
with  equal  astonishment  and  apprehension;  and 
which,  they  cannot  but  persuade  themselves  must 
have  the  same  effect  on  all  who  will  consider  it  with 
coolness  and  impartially,  and  with  a  reverence  for 
our  Constitution,  in  the  true  character  in  which  it 
issued  from  the  sovereign  authority  of  the  people. 
The  committee  refer  to  the  doctrine  lately  advanced, 
as  a  sanction  to  the  Sedition  Act,  "that  the  common 
or  unwritten  law" — a  law  of  vast  extent  and  complex- 
ity, and  embracing  almost  every  possible  subject  of 
legislation,  both  civil  and  criminal — makes  a  part  of 
the  law  of  these  States,  in  their  united  and  national 
capacity. 

The  novelty,  and,  in  the  judgment  of  the  com- 
mittee, the  extravagance  of  this  pretension,  would 
have  consigned  it  to  the  silence  in  which  they  have 
passed  by  other  arguments  which  an  extraordinary 
zeal  for  the  act  has  drawn  into  the  discussion ;  but 
the  auspices  under  which  this  innovation  presents 
itself  have  constrained  the  committee  to  bestow  on  it 
an  attention  which  other  considerations  might  have 
forbidden. 

In  executing  the  task,  it  may  be  of  use  to  look 


88  A  STUDY  m 

back  to  the  colonial  state  of  this  country  prior  to  the 
Revolution;  to  trace  the  effect  of  the  Revolution 
which  converted  the  colonies  into  independent  States ; 
to  inquire  into  the  import  of  the  Articles  of  Con- 
federation, the  first  instrument  by  which  the  union 
of  the  States  was  regularly  established ;  and,  finally, 
to  consult  the  Constitution  of  1787,  which  is  the 
oracle  that  must  decide  the  important  question. 

In  the  state  prior  to  the  Revolution,  it  is  certain 
that  the  common  law,  under  different  limitations, 
made  a  part  of  the  colonial  codes.  But,  whether  it 
be  understood  that  the  original  colonists  brought  the 
law  with  them,  or  made  it  their  law  by  adoption,  it  is 
equally  certain  that  it  was  the  separate  law  of  each 
colony  within  its  respective  limits,  and  was  unknown 
to  them  as  a  law  pervading  and  operating  through 
the  whole,  as  one  society. 

It  could  not  possibly  be  otherwise.  The  common 
law  was  not  the  same  in  any  two  of  the  colonies;  in 
some,  the  modifications  were  materially  and  exten- 
sively different.  There  was  no  common  legislature, 
by  which  a  common  will  could  be  expressed  in  the 
form  of  a  law;  nor  any  common  magistracy,  by 
which  such  a  law  could  be  carried  into  practice.  The 
will  of  each  colony,  alone  and  separately,  had  its 
organs  for  these  purposes.  This  stage  of  our  political 
history  furnishes  no  foothold  for  the  patrons  of  this 
new  doctrine. 

Did,  then,  the  principle  or  operation  of  the  great 
event,  which  made  the  colonies  independent  States, 


STATE  RIGHTS  89 

imply  or  introduce  the  common  law,  as  a  law  of  the 
Union  ? 

The  fundamental  principle  of  the  Eevolution  was, 
that  the  colonies  were  co-ordinate  members  with  each 
other,  and  with  Great  Britain,  of  an  empire  united  by 
a  common  executive  sovereign,  but  not  united  by  any 
common  legislative  sovereign.  The  legislative  power 
was  maintained  to  be  as  complete  in  each  American 
Parliament,  as  in  the  British  Parliament.  And  the 
royal  prerogative  was  in  force  in  each  colony,  by 
virtue  of  its  acknowledging  the  King  for  its  execu- 
tive magistrate,  as  it  was  in  Great  Britain,  by  virtue 
of  a  like  acknowledgment  there.  A  denial  of  these 
principles  by  Great  Britain,  and  the  assertion  of  them 
by  America,  produced  the  Revolution. 

There  was  a  time,  indeed,  when  an  exception  to 
the  legislative  separation  of  the  several  component 
and  coequal  parts  of  the  empire  obtained  a  degree 
of  acquiescence.  The  British  Parliament  was  al- 
lowed to  regulate  the  trade  with  foreign  nations,  and 
between  the  different  parts  of  the  empire.  This  was, 
however,  mere  practice  without  right,  and  contrary 
to  the  true  theory  of  the  Constitution.  The  con- 
venience of  some  regulations,  in  both  cases,  was  ap- 
parent; and  as  there  was  no  legislature  with  power 
over  the  whole,  nor  any  constitutional  pre-eminence 
among  the  legislatures  of  the  several  parts,  it  was 
natural  for  the  legislature  of  that  particular  part 
which  was  the  eldest  and  the  largest,  to  assume  this 
function,  and  for  the  others  to  acquiesce  in  it.     This 


90  A  STUDY  IN 

tacit  arrangement  was  the  less  criticised,  as  the  regu- 
lations established  by  the  British  Parliament  operated 
in  favor  of  that  part  of  the  empire  which  seemed  to 
bear  the  principal  share  of  the  public  burdens,  and 
were  regarded  as  an  indemnification  of  its  advances 
for  the  other  parts.  As  long  as  this  regulating  power 
was  confined  to  the  two  objects  of  conveniency  and 
equity,  it  was  not  complaint  of,  nor  much  inquired 
into.  But  no  sooner  was  it  perverted  to  the  selfish 
views  of  the  party  assuming  it,  than  the  injured 
parties  began  to  feel  and  to  reflect ;  and  the  moment 
the  claim  to  a  direct  and  indefinite  power  was  en- 
grafted on  the  precedent  of  the  regulating  power,  the 
whole  charm  was  dissolved,  and  every  eye  opened  to 
the  "usurpation.  The  assertion  by  Great  Britain  of 
a  power  to  make  laws  for  the  other  members  of  the 
empire,  in  all  cases  whatsoever,  ended  in  the  dis- 
covery that  she  had  a  right  to  make  laws  for  them  in 
no  cases  whatever. 

Such  being  the  ground  of  our  Revolution,  no  sup- 
port or  color  can  be  drawn  from  it  for  the  doctrine 
that  the  common  law  is  binding  on  these  States  as 
one  society.  The  doctrine,  on  the  contrary,  is  evi- 
dently repugnant  to  the  fundamental  principle  of 
the  Kevolution. 

The  Articles  of  Confederation  are  the  next  source 
of  information  on  this  subject. 

In  the  interval  between  the  commencement  of  the 
Revolution  and  the  final  ratification  of  these  Articles, 
the  nature  and  extent  of  the  Union  was  determined 


STATE  RIGHTS  91 

by  the  circumstances  of  the  crisis,  rather  than  by  any 
accurate  delineation  of  the  general  authority.  It  will 
not  be  alleged  that  the  "common  law"  could  have 
any  legitimate  birth,  as  a  law  of  the  United  States, 
during  that  state  of  things.  If  it  came,  as  such,  into 
existence  at  all,  the  charter  of  confederation  must 
have  been  its  parent. 

Here,  again,  however,  its  pretensions  are  absolutely 
destitute  of  foundation.  This  instrument  does  not 
contain  a  sentence  or  a  syllable  that  can  be  tortured 
into  a  countenance  of  the  idea  that  the  parties  to  it 
were,  with  respect  to  the  objects  of  the  common  law, 
to  form  one  community.  'No  such  law  is  named,  or 
implied,  or  alluded  to,  as  being  in  force,  or  as  brought 
into  force  by  that  compact.  No  provision  is  made  by 
which  such  a  law  could  be  carried  into  operation; 
whilst,  on  the  other  hand,  every  such  inference  or 
pretext  is  absolutely  precluded  by  Art.  2,  which  de- 
clares "that  each  State  retains  its  sovereignty,  free- 
dom, and  independence,  and  every  power,  jurisdic- 
tion, and  right,  which  is  not  by  this  Confederation 
expressly  delegated  to  the  United  States  in  Congress 
assembled." 

Thus  far  it  appears  that  not  a  vestige  of  this  ex- 
traordinary doctrine  can  be  found  in  the  origin  or 
progress  of  American  institutions.  The  evidence 
against  it  has,  on  the  contrary,  grown  stronger  at 
every  step,  till  it  has  amounted  to  a  formal  and  posi- 
tive exclusion,  by  written  articles  of  compact,  among 
the  parties  concerned. 


92  A  STUDY  IN 

Is  this  exclusion  revoked,  and  the  common  law 
introduced  as  national  law,  by  the  present  Constitu- 
tion of  the  United  States  ?  This  is  the  final  question 
to  be  examined. 

It  is  readily  admitted  that  particular  parts  of  the 
common  law  may  have  a  sanction  from  the  Constitu- 
tion, as  far  as  they  are  necessarily  comprehended  in 
the  technical  phrases  which  express  the  powers  dele- 
gated to  the  Government;  and  so  far,  also,  as  such 
other  parts  may  be  adopted  by  Congress,  as  necessary 
and  proper  for  carrying  into  execution  the  powers 
expressly  delegated.  But  the  question  does  not  relate 
to  either  of  these  portions  of  the  common  law.  It 
relates  to  the  common  law  beyond  these  limitations. 

The  only  part  of  the  Constitution  which  seems  to 
have  been  relied  on  in  this  case,  is  the  2d  section  of 
art.  3 : — "The  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitu- 
tion, the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority."  It 
has  been  asked  what  cases,  distinct  from  those  arising 
under  the  laws  and  treaties  of  the  United  States,  can 
arise  under  the  Constitution,  other  than  those  arising 
under  the  common  law;  and  it  is  inferred  that  the 
common  law  is,  accordingly,  adopted  or  recognized 
by  the  Constitution. 

Never,  perhaps,  was  so  broad  a  construction  applied 
to  a  text  so  clearly  unsusceptible  of  it.  If  any  color 
for  the  inference  could  be  found,  it  must  be  in  the 
impossibility  of  finding  any  other  cases,  in  law  and 


STATE  EIGHTS  98 

equity,  within  the  provisions  of  the  Constitution,  to 
satisfy  the  expression;  and  rather  than  resort  to  a 
construction  affecting  so  essentially  the  whole  char- 
acter of  the  Government,  it  would  perhaps  be  more 
rational  to  consider  the  expression  as  a  mere  pleonasm 
or  inadvertence.  But  it  is  not  necessary  to  decide  on 
such  a  dilemma.  The  expression  is  fully  satisfied, 
and  its  accuracy  justified,  by  two  descriptions  of 
cases,  to  which  the  judicial  authority  is  extended, 
and  neither  of  which  implies  that  the  common  law  is 
the  law  of  the  United  States.  One  of  these  descrip- 
tions comprehends  the  cases  growing  oiTt  of  the  re- 
strictions on  the  legislative  power  of  the  States.  For 
example,  it  is  provided  that  "no  State  shall  emit  bills 
of  credit,"  or  "make  any  thing  but  gold  and  silver 
coin  a  tender  for  the  payment  of  debts."  Should  this 
prohibition  be  violated,  and  a  suit  between  citizens 
of  the  same  State  be  the  consequence,  this  would  be 
a  case  arising  under  the  Constitution  before  the  judi- 
cial power  of  the  United  States.  A  second  descrip- 
tion comprehends  suits  between  citizens  and  for- 
eigners, of  citizens  of  different  States,  to  be  decided 
according  to  the  State  or  foreign  laws,  but  submitted 
by  the  Constitution  to  the  judicial  power  of  the 
United  States;  the  judicial  power  being,  in  several 
instances,  extended  beyond  the  legislative  power  of 
the  United  States. 

To  this  explanation  of  the  text,  the  following  ob- 
servations may  be  added: 

The  expression  "cases  in  law  and  equity"  is  mani- 


94  A  STUDY  IIST 

festly  confined  to  cases  of  a  civil  nature,  and  would 
exclude  cases  of  criminal  jurisdiction.  Criminal 
cases  in  law  and  equity  would  be  a  language  unknown 
to  the  law. 

The  succeeding  paragraph  in  the  same  section  is  in 
harmony  with  this  construction.  It  is  in  these  words : 
"In  all  cases  affecting  ambassadors,  or  other  public 
ministers,  and  consuls;  and  those  in  which  a  State 
shall  be  a  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  (includ- 
ing cases  of  law  and  equity  arising  under  the  Con- 
stitution) the  Supreme  Court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fad,  with  such  excep- 
tions, and  under  such  regulations,  as  Congress  shall 
make." 

This  paragraph,  by  expressly  giving  an  appellate 
jurisdiction  in  cases  of  law  and  equity  arising  under 
the  Constitution,  to  fact,  as  well  as  to  law,  clearly 
excludes  criminal  cases,  where  the  trial  by  jury  is 
secured — because  the  fact,  in  such  cases,  is  not  a  sub- 
ject of  appeal;  and,  although  the  appeal  is  liable  to 
such  exceptions  and  regulations  as  Cbngress  may 
adopt,  yet  it  is  not  to  be  supposed  that  an  exception 
of  all  criminal  cases  could  be  contemplated,  as  well 
because  a  discretion  in  Congress  to  make  or  omit  the 
exception  would  be  improper,  as  because  it  would 
have  been  unnecessary.  The  exception  could  as 
easily  have  been  made  by  the  Constitution  itself,  as 
referred  to  the  Congress. 

Once  more:     The  amendment  last  added  to  the 


STATE  EIGHTS  96 

Constitution  deserves  attention  as  throwing  light  on 
this  subject.  "The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in 
laiu  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States,  by  citizens  of  another  State,  or 
by  citizens  or  subjects  of  any  foreign  power."  As  it 
will  not  be  pretended  that  any  criminal  proceeding 
could  take  place  against  a  State,  the  terms  law  or 
equity  must  be  understood  as  appropriate  to  civil  in 
exclusion  of  criminal  cases. 

From  these  considerations,  it  is  evident  that  this 
part  of  the  Constitution,  even  if  it  could  be  applied  at 
all  to  the  purpose  for  which  it  has  been  cited,  would 
not  include  any  cases  whatever  of  a  criminal  nature, 
and  consequently  would  not  authorize  the  inference 
from  it,  that  the  judicial  authority  extends  to  offences 
against  the  common  law,  as  offences  arising  under  the 
Constitution. 

It  is  further  to  be  considered  that,  even  if  this  part 
of  the  Constitution  could  be  strained  into  an  applica- 
tion to  every  common  law  case,  criminal  as  well  as 
civil,  it  could  have  no  effect  in  justifying  the  Sedition 
Act,  which  is  an  act  of  legislative,  and  not  of  judicial 
power ;  and  it  is  the  judicial  power  only  of  which  the 
extent  is  defined  in  this  part  of  the  Constitution. 

There  are  two  passages  in  the  Constitution,  in 
which  a  description  of  the  law  of  the  United  States 
is  found.  The  first  is  contained  in  act  3,  sec.  3,  in  the 
words  following :  "This  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be 


96  A  STUDY  IIST 

made,  under  this  authority."  The  second  is  con- 
tained in  the  second  paragraph  of  art.  6,  as  follows: 
"This  Constitution,  and  the  laws  of  the  United  States 
which  shall  he  made  in  pursuance  thereof,  and  all 
treaties  made  or  which  shall  be  made,  under  the 
authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land."  The  first  of  these  descriptions  was 
meant  as  a  guide  to  the  judges  of  the  United  States; 
the  second,  as  a  guide  to  the  judges  of  the  several 
States.  Both  of  them  consist  of  an  enumeration, 
which  was  evidently  meant  to  be  precise  and  complete. 
If  the  common  law  had  been  understood  to  be  a  law 
of  the  United  States,  it  is  not  possible  to  assign  a 
satisfactory  reason  why  it  was  not  expressed  in  the 
enumeration. 

In  aid  of  these  objections,  the  diflficulties  and  con- 
fusion inseparable  from  a  constructive  introduction 
of  the  common  law  would  afford  powerful  reasons 
against  it. 

Is  it  to  be  the  common  law  with  or  witliout  the 
British  statutes?  If  without  the  statutory  amend- 
ments, the  vices  of  the  code  would  be  insupportable. 

If  with  these  amendments,  what  period  is  to  be 
fixed  for  limiting  the  British  authority  over  our 
laws? 

Is  it  to  be  the  date  of  the  eldest,  or  the  youngest, 
of  the  colonies  ?  Or  are  the  dates  to  be  thrown  to- 
gether, and  a  medium  deduced?  Or  is  our  inde- 
pendence to  be  taken  for  the  date? 

Is,  again,  regard  to  be  had  to  the  various  changes 


STATE  EIGHTS  97 

in  the  common  law  made  by  the  local  codes  of 
America  ? 

Is  regard  to  be  had  to  such  changes  subsequent  as 
well  as  prior  to  the  establishment  of  the  Constitution  ? 

Is  regard  to  be  had  to  future  as  well  as  past 
changes  ? 

Is  the  law  to  be  different  in  every  State,  as -differ- 
ently modified  by  its  code;  or  are  the  modifications 
of  any  particular  State  to  be  applied  to  all? 

And  on  the  latter  supposition,  which  among  the 
State  codes  forms  the  standard? 

Questions  of  this  sort  might  be  multiplied  with  as 
much  ease  as  there  would  be  difficulty  in  answering 
them. 

These  consequences,  flowing  from  the  proposed 
construction,  furnish  other  objections  equally  conclu- 
sive ;  unless  the  text  were  peremptory  in  its  meaning, 
and  consistent  with  other  parts  of  the  instrument. 

These  consequences  may  be  in  relation  to  the  legis- 
lative authority  of  the  United  States;  to  the  execu- 
tive authority;  to  the  judicial  authority;  and  to  the 
Government  of  the  several  States. 

If  it  be  understood  that  the  common  law  is  estab- 
lished by  the  Constitution,  it  follows  that  no  part  of 
the  law  can  be  altered  by  the  Legislature.  Such  of  the 
statutes  already  passed  as  may  be  repugnant  thereto, 
would  be  nullified;  particularly  the  Sedition  Act 
itself,  which  boasts  of  being  a  melioration  of  the 
common  law ;  and  the  whole  code,  with  all  its  incon- 
gruities, barbarisms,  and  bloody  maxims,  would  be 


98  A  STUDY  m 

inviolably  saddled  on  the  good  people  of  the  United 
States. 

Should  this  consequence  be  rejected,  and  the  com- 
mon law  be  held,  like  other  laws,  liable  to  revision 
and  alteration  by  the  authority  of  Congress,  it  then 
follows  that  the  authority  of  Congress  is  co-extensive 
with  the  objects  of  coaimion  law ;  that  is  to  say,  with 
every  object  of  legislation ;  for  to  every  such  object 
does  some  branch  or  other  of  the  common  law  ex- 
tend. The  authority  of  Congress  would,  therefore,  be 
no  longer  under  the  limitations  marked  out  in  the 
Constitution.  They  would  be  authorized  to  legislate 
in  all  cases  whatsoever. 

In  the  next  place,  as  the  President  possesses  the 
executive  powers  of  the  Constitution,  and  is  to  see 
that  the  laws  be  faithfully  executed,  his  authority 
also  must  be  co-extensive  with  every  branch  of  the 
common  law.  The  additions  which  this  would  make 
to  his  power,  though  not  readily  to  be  estimated,  claim 
the  most  serious  attention. 

This  is  not  all:  it  will  merit  the  most  profound 
consideration,  how  far  an  indefinite  admission  of  the 
common  law,  with  a  latitude  in  construing  it  equal  to 
the  construction  by  which  it  is  deduced  from  the  Con- 
stitution, might  draw  after  it  the  various  prerogatives, 
making  part  of  the  unwritten  law  of  England.  The 
English  Constitution  itself  is  nothing  more  than  a 
composition  of  unwritten  laws  and  maxims. 

In  the  third  place,  whether  the  common  law  be 
admitted  as  of  legal  or  of  constitutional  obligation,  it 


STATE  EIGHTS  99 

would  confer  on  the  judicial  department  a  discretion 
little  sliort  of  a  legislative  power. 

On  the  supposition  of  its  having  a  constitutional 
obligation,  this  power  in  the  judges  would  be  per- 
manent and  irremediable  by  the  Legislature.  On 
the  other  supposition,  the  power  would  not  expire 
until  the  Legislature  should  have  introduced  a  full 
system  of  statutory  provisions.  Let  it  be  observed, 
too,  that,  besides  all  the  uncertainties  above  enumer- 
ated, and  which  present  an  immense  field  for  judicial 
discretion,  it  would  remain  with  the  same  department 
to  decide  what  parts  of  the  common  law  would,  and 
what  would  not,  be  properly  applicable  to  the  circum- 
stances of  the  United  States. 

A  discretion  of  this  sort  has  always  been  lamented 
as  incongruous  and  dangerous,  even  in  the  colonial 
and  State  courts,  although  so  much  narrowed  by 
positive  provisions  in  the  local  codes  on  all  the  prin- 
cipal subjects  embraced  by  the  common  law.  Under 
the  United  States,  where  so  few  laws  exist  on  those 
subjects,  and  where  so  great  a  lapse  of  time  must 
happen  before  the  vast  chasm  could  be  supplied,  it  is 
manifest  that  the  power  of  the  judges  over  the  law 
would,  in  fact,  erect  them  into  legislators,  and  that, 
for  a  long  time,  it  would  be  impossible  for  the 
citizens  to  conjecture  either  what  was,  or  would  be, 
law. 

In  the  last  place,  the  consequence  of  admitting  the 
common  law  as  the  law  of  the  United  States,  on  the 
authority  of  the  individual  States,  is  as  obvious  as  it 


100  A  STUDY  IlSr 

would  be  fatal.  As  this  law  relates  to  every  subject 
of  legislation,  and  would  be  paramount  to  the  Con- 
stitutions and  laws  of  the  States,  the  admission  of  it 
would  overwhelm  the  residuary  sovereignty  of  the 
States,  and,  by  one  constructive  operation,  new- 
model  the  whole  political  fabric  of  the  country. 

From  the  review  thus  taken  of  the  situation  of  the 
American  colonies  prior  to  their  independence;  of 
the  effect  of  this  event  on  their  situation ;  of  the 
nature  and  import  of  the  Articles  of  Confederation; 
of  the  true  meaning  of  the  passage  in  the  existing 
Constitution  from  which  the  common  law  has  been 
deduced ;  of  the  difficulties  and  uncertainties  inci- 
dent to  the  doctrine ;  and  of  its  vast  consequences  in 
extending  the  powers  of  the  Federal  Government,  and 
in  superseding  the  authorities  of  the  State  govern- 
ments,— ^the  committee  feel  the  utmost  confidence  in 
concluding  that  the  common  law  never  was,  nor  by 
any  fair  construction  ever  can  be,  deemed  a  law  for 
the  American  people  as  one  community,  and  they 
indulge  the  strongest  expectation  that  the  same  con- 
clusion will  be  finally  drawn  by  all  candid  and 
accurate  inquirers  in  the  subject.  It  is,  indeed,  dis- 
tressing to  reflect  that  it  ever  should  have  been  made 
a  question,  whether  the  Constitution,  on  the  whole 
face  of  which  is  seen  so  much  labor  to  enumerate  and 
define  the  several  objects  of  Federal  power,  could 
intend  to  introduce  in  the  lump,  in  an  indirect  man- 
ner, and  by  a  forced  construction  of  a  few  phrases, 
the  vast  and  multifarious  jurisdiction  involved  in 


STATE  RIGHTS  101 

the  common  law — a  law  filling  so  many  ample 
volumes,  a  law  overspreading  the  entire  field  of  legis- 
lation; and  a  law  that  would  mp  tho .  foundation  of 
the  Constitution  as.asjstGm.cl  limited  and  specified 
powers.  A  severer  rsproaoli  could  not,  in  the- opinion 
of  the  committee,  be  thrown  on  the  Constitution,  on 
those  who  framed,  or  on  those  who  established  it,  than 
such  a  supposition  would  throw  on  them. 

The  argument,  then,  drawn  from  the  common  law, 
on  the  ground  of  its  being  adopted  or  recognized  by 
the  Constitution,  being  inapplicable  to  the  Sedition 
Act,  the  committee  will  proceed  to  examine  the  other 
arguments  which  have  been  founded  on  the  Constitu- 
tion. 

They  will  waste  but  little  time  in  the  attempt  to 
cover  the  act  by  the  preamble  to  the  Constitution,  it 
being  contrary  to  every  acknowledged  rule  of  con- 
struction to  set  up  this  part  of  an  instrument  in  oppo- 
sition to  the  plain  meaning  expressed  in  the  body  of 
the  instrument.  A  preamble  usually  contains  the 
general  motives  or  reason  for  the  particular  regula- 
tions of  measures  which  follow  it,  and  is  always 
understood  to  be  explained  and  limited  by  them.  In 
the  present  instance,  a  contrary  interpretation  would 
have  the  inadmissable  effect  of  rendering  nugatory  or 
improper  every  part  of  the  Constitution  which  suc- 
ceeds the  preamble. 

The  paragraph  in  Article  1,  Section  8,  which  con- 
tains the  power  to  levy  and  collect  taxes,  duties,  im- 
posts, and  excises,  to  pay  the  debts,  and  provide  for 


102  A  STUDY  IN 

the  common  defence  and  general  welfare,  having 
been  already  examined,  will  also  require  no  particu- 
lar attentidu -ifl  thjs'-.p^ace!  It  will  have  been  seen 
that,  in  its . fail?.  ar\d.  consistent  meaning,  it  cannot 
enlarge  •th.-a  etiiimemted  powets  vested  in  Congress. 

The  part  of  the  Constitution  which  seems  most  to 
be  recurred  to,  in  defence  of  the  Sedition  Act,  is  the 
last  clause  of  the  above  section,  empowering  Con- 
gress "to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States,  or  in 
any  department  or  officer  thereof." 

The  plain  import  of  this  clause  is,  that  Congress 
shall  have  all  the  incidental  or  instrumental  powers 
necessary  and  proper  for  carrying  into  execution  all 
the  express  powers,  whether  they  be  vested  in  the 
government  of  the  United  States,  more  collectively, 
or  in  the  several  departments  or  officers  thereof. 

It  is  not  a  grant  of  new  powers  to  Congress,  but 
merely  a  declaration,  for  the  removal  of  all  uncer- 
tainty, that  the  means  of  carrying  into  execution 
those  otherwise  granted  are  included  in  the  grant. 

Whenever,  therefore,  a  question  arises  concerning 
the  constitutionality  of  a  particular  power,  the  first 
question  is,  whether  the  power  be  expressed  in  the 
Constitution.  If  it  be,  the  question  is  decided.  If  it 
be  not  expressed,  the  next  inquiry  must  be,  whether 
it  is  properly  an  incident  to  an  express  power,  and 
necessary  to  its  execution.     If  it  be,  it  may  be  exer- 


STATE  RIGHTS  103 

cised  by  Congress.  If  it  be  not,  Congress  cannot 
exercise  it. 

Let  the  question  be  asked,  then,  whether  the  power 
over  the  press,  exercised  in  the  Sedition  Act,  be  found 
among  the  powers  expressly  vested  in  Congress.  This 
is  not  pretended. 

Is  there  any  express  power,  for  executing  which  it 
is  a  necessary  and  proper  power  ? 

The  power  which  has  been  selected,  as  least  re- 
mote, in  answer  tO'  this  question,  is  that  "of  sup- 
pressing insurrections" ;  which  is  said  to  imply  a 
power  to  prevent  insurrections,  by  punishing  whatr 
ever  may  lead  or  tend  to  them.  But  it  surely  cannot, 
with  the  least  plausibility,  be  said,  that  the  regula- 
tion of  the  press,  and  punishment  of  libels,  are  exer- 
cises of  a  power  to  suppress  insurrections.  The  most 
that  could  be  said  would  be,  that  the  punishment  of 
libels,  if  it  had  the  tendency  ascribed  to  it,  might 
prevent  the  occasion  of  passing  or  execviting  laws 
necessary  and  proper  for  the  suppression  of  insur- 
rections. 

Has  the  Federal  Government  no  power,  then,  to 
prevent  as  well  as  to  punish  resistance  to  the  laws  ? 

They  have  the  power,  which  the  Constitution 
deemed  most  proper,  in  their  hands  for  the  purpose. 
The  Congress  has  power,  before  it  happens,  to  pass 
laws  for  punishing  it ;  and  the  executive  and  judiciary 
have  power  to  enforce  those  laws  when  it  does  happen. 

It  must  be  recollected  by  many,  and  could  be 
shown  to  the  satisfaction  of  all,  that  the  construction 


104  A  STUDY  IN 

here  put  on  the  terms  "necessary  and  proper"  is 
precisely  the  construction  which  prevailed  during  the 
discussions  and  ratifications  of  the  Constitution.  It 
may  be  added,  and  cannot  too  often  be  repeated,  that 
it  is  a  construction  absolutely  necessary  to  maintain 
their  consistency  with  the  peculiar  character  of  the 
government,  as  possessed  of  particular  and  definite 
powers  only,  not  of  the  general  and  indefinite  powers 
vested  in  ordinary  governments;  for,  if  the  power  to 
suppress  insurrections  includes  the  power  to  punish 
libels,  or  if  the  power  to  punish  includes  a  power  to 
prevent,  by  all  the  means  that  may  have  that  ten- 
dency, such  is  the  relation  and  influence  among  the 
most  remote  subjects  of  legislation,  that  a  power  over 
a  very  few  would  carry  with  it  a  power  over  all. 
And  it  must  be  wholly  immaterial  whether  unlim- 
ited powers  be  exercised  under  the  name  of  unlim- 
ited powers,  or  be  exercised  under  the  name  of  un- 
limited means  of  carrying  into  execution  limited 
powers. 

This  branch  of  the  subject  will  be  closed  with  a 
reflection  which  must  have  weight  with  all,  but  more 
especially  with  those  who  place  peculiar  reliance 
on  the  judicial  exposition  of  the  Constitution,  as  the 
bulwark  provided  against  an  undue  extension  of  the 
legislative  power.  If  it  be  understood  that  the  powers 
implied  in  the  specified  powers  have  an  immediate 
and  appropriate  relation  to  them,  as  means  necessary 
and  proper  for  carrying  them  into  execution,  ques- 
tions on  constitutionality  of  laws  passed  for  this  pur- 


STATE  EIGHTS  105 

pose  will  be  of  a  nature  sufficiently  precise  and  deter- 
minate for  judicial  cognizance  and  control.  If,  on  the 
other  hand,  Congress  are  not  limited,  in  the  choice 
of  means,  by  any  such  appropriate  relation  of  them 
to  the  specified  powers,  but  may  employ  all  such 
means  as  they  may  deem  fitted  to  prevent,  as  well  as 
to  punish,  crimes  subjected  to  their  authority  (such 
as  may  have  a  tendency  only  to  promote  an  object  for 
which  they  are  authorized  to  provide),  every  one 
must  perceive  that  questions  relating  to  means  of  this 
sort  must  be  questions  for  mere  policy  and  expedi- 
ency; on  which  legislative  discretion  alone  can  de- 
cide, and  from  which  the  judicial  interposition  and 
control  are  completely  excluded, 

2.  The  next  point  which  the  resolution  requires  to 
be  proved  is,  that  the  power  over  the  press,  exercised 
by  the  Sedition  Act,  is  positively  forbidden  by  one  of 
the  amendments  to  the  Constitution. 

The  amendment  stands  in  these  words :  "Congress 
shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof,  or 
abridging  the  freedom  of  speech,  or  of  the  press,  or 
of  the  right  of  the  people  peaceably  to  assemble,  and 
to  petition  the  government  for  a  redress  of  griev- 
ances." 

In  the  attempts  to  vindicate  the  Sedition  Act,  it 
has  been  contended,  1.  That  the  "freedom  of  the 
press"  is  to  be  determined  by  the  meaning  of  these 
terms  in  the  common  law ;  2.  That  the  article  sup- 
poses power  over  the  press  to  be  in  Congress,  and 


106  A  STUDY  m 

prohibits  them  only  from  abridging  the  freedom 
allowed  to  it  by  the  common  law. 

Although  it  will  be  shown,  on  examining  the  second 
of  these  positions,  that  the  amendment  is  a  denial 
to  Congress  of  all  power  over  the  press,  it  may  not 
be  useless  to  make  the  following  observations  on  the 
first  of  them: 

It  is  deemed  to  be  a  sound  opinion  that  the  Sedi- 
tion Act,  in  its  definition  of  some  of  the  crimes 
created,  is  an  abridgment  of  the  freedom  of  publica- 
tion, recognized  by  principles  of  the  common  law  in 
England. 

The  freedom  of  the  press,  under  the  common  law, 
is,  in  the  defences  of  the  Sedition  Act,  made  to  con- 
sist in  an  exemption  from  all  previous  restraint  on 
printed  publications,  by  persons  authorized  to  inspect 
or  prohibit  them.  It  appears  to  the  committee  that 
this  idea  of  the  freedom  of  the  press  can  never  be 
admitted  to  be  the  American  idea  of  it;  since  a  law 
inflicting  penalties  on  printed  publications  would  have 
a  similar  effect  with  a  law  authorizing  a  previous 
restraint  on  them.  It  would  seem  a  mockery  to  say 
that  no  laws  should  be  passed  preventing  publications 
from  being  made,  but  that  laws  might  be  passed  for 
punishing  them  in  case  they  should  be  made. 

The  essential  difference  between  the  British  Gov- 
ernment and  the  American  Constitutions  will  place 
this  subject  in  the  clearest  light. 

In  the  British  Government,  the  danger  of  encroach- 
ments on  the  rights  of  the  people  is  understood  to  be 


STATE  EIGHTS  107 

confined  to  the  executive  magistrate.  The  Repre- 
sentatives of  the  people  in  the  Legislature  are  not 
only  exempt  themselves  from  distrust,  but  are  consid- 
ered as  sufficient  guardians  of  the  rights  of  their  con- 
stituents against  the  danger  from  the  Executive. 
Hence  it  is  a  principle,  that  the  Parliament  is  un- 
limited in  its  power;  or,  in  their  own  language,  is 
omnipotent.  Hence,  too,  all  the  ramparts  for  pro- 
tecting the  rights  of  the  people, — such  as  their  Magna 
Charta,  their  bill  of  rights,  etc. — are  not  reared 
against  the  Parliament,  but  against  the  royal  preroga- 
tive. Thej  are  merely  legislative  precautions  against 
executive  usurpation.  Under  such  a  government  as 
this,  an  exemption  of  the  press  from  previous  re- 
straint by  licensers  appointed  by  the  King,  is  all  the 
f  reedoan  that  can  be  restored  to  it. 

In  the  United  States  the  case  is  altogether  dif- 
ferent. The  people,  not  the  government,  possess  the 
absolute  sovereignty.  The  Legislature,  no  less  than 
the  Executive,  is  under  limitations  of  power.  En- 
croachments are  regarded  as  possible  from  the  one 
as  well  as  from  the  other.  Hence,  in  the  United 
States,  the  great  and  essential  rights  of  the  people  are 
secured  against  legislative  as  well  as  executive  ambi- 
tion. They  are  secured,  not  by  laws  paramount  to 
prerogative,  but  by  Constitutions  paramount  to  laws. 
This  security  of  the  freedom  of  the  press  requires 
that  it  should  be  exempt,  not  only  from  previous 
restraint  of  the  Executive,  as  in  Great  Britain,  but 
from  legislative  restraint  also;  and  this  exemption, 


108  A  STUDY  m 

to  be  effectual,  must  be  an  exemption,  not  only  from 
the  previous  inspection  of  licensers,  but  from  the 
subsequent  penalty  of  laws. 

The  state  of  the  press,  therefore,  under  the  common 
law,  cannot,  in  this  point  of  view,  be  the  standard 
of  its  freedom  in  the  United  States. 

But  there  is  another  view  under  which  it  may  be 
necessary  to  consider  this  subject.  It  may  be  alleged 
that,  although  the  security  for  the  freedom  of  the 
press  be  different  in  Great  Britain  and  in  this  coun- 
try,— ^being  a  legal  security  only  in  the  former,  and 
constitutional  security  in  the  latter, — and  although 
there  may  be  a  further  difference,  in  an  extension  of 
the  freedom  of  the  press,  here,  beyond  on  exemption 
from  previous  restraint,  to  an  exemption  from  subse- 
quent penalties  also, — ^yet  the  actual  legal  freedom 
of  the  press,  under  the  common  law,  must  deter- 
mine the  degree  of  freedom  which  is  meant  by  the 
terms,  and  which  is  constitutionally  secured  against 
both  previous  and  subsequent  restraints. 

The  committee  are  not  unaware  of  the  difficulty  of 
all  general  questions  which  may  turn  on  the  proper 
boundary  between  the  liberty  and  licentiousness  of 
the  press.  They  will  leave  it,  therefore,  for  con- 
sideration only,  how  far  the  difference  between  the 
nature  of  the  British  Government  and  the  nature  of 
the  American  Government,  and  the  practice  under 
the  latter,  may  show  the  degree  of  rigor  in  the  former 
to  be  inapplicable  to,  and  not  obligatory  in,  the  latter. 

The  nature  of  governments  elective,  limited,  and 


STATE  EIGHTS  109 

responsible,  in  all  their  branches,  may  well  be  sup- 
posed to  require  a  greater  freedom  of  animadversion 
than  might  be  tolerated  by  the  genius  of  such  a  Gov- 
ernment as  that  of  Great  Britain.  In  the  latter,  it  is 
a  maxim  that  the  King — an  hereditary,  not  a  respon- 
sible magistrate — can  do  no  wrong;  and  that  the 
Legislature,  which,  in  two-thirds  of  its  composition, 
is  also  hereditary,  not  responsible,  can  do  what  it 
pleases.  In  the  United  States  the  executive  magis- 
trates are  not  held  to  be  infallible,  nor  the  Legisla- 
tures to  be  omnipotent ;  and  both,  being  elective,  are 
both  responsible.  Is  it  not  natural  and  necessary, 
under  such  different  circumstances,  that  a  different 
degree  of  freedom  is  the  use  of  the  press  should  be 
contemplated  ? 

Is  not  such  an  inference  favored  by  what  is  ob- 
servable in  Great  Britain  itself?  ^Notwithstanding 
the  general  doctrine  of  the  common  law  on  the  sub- 
ject of  the  press,  and  the  occasional  punishment  of 
those  who  use  it  with  a  freedom  offensive  to  the  gov- 
ernment, it  is  well  known  that,  with  respect  to  the  re- 
sponsible measures  of  the  government,  where  the  rea- 
sons operating  here  become  applicable  there,  the  free- 
dom exercised  by  the  press  and  protected  by  pub- 
lic opinion,  far  exceeds  the  limits  prescribed  by 
the  ordinary  rules  of  law.  The  ministry,  who  are 
responsible  to  impeachment,  are  at  all  times  animad- 
verted on  by  the  press  with  peculiar  freedom;  and 
during  the  elections  for  the  House  of  Commons,  the 
other  responsible  part  of  the  government,  the  press  is 


110  A  STUDY  IN 

employed  with  as  little  reserve  towards  the  can- 
didates. 

The  practice  in  America  must  be  entitled  to  much 
more  respect.  In  every  State,  probably,  in  the  Union, 
the  press  has  exerted  a  freedom  in  canvassing  the 
merits  and  measures  of  public  men  of  every  descrip- 
tion, which  has  not  been  confined  to  the  strict  limits 
of  the  common  law.  On  this  footing  the  freedom 
of  the  press  has  stood;  on  this  foundation  it  yet 
stands ;  and  it  will  not  be  a  breach,  either  of  truth  or 
of  candor,  to  say  that  no  persons  or  presses  are  in  the 
habit  of  more  unrestrained  animadversions  on  the 
proceedings  and  functionaries  of  the  State  Govern- 
ments than  the  persons  and  presses  most  zealous  in 
vindicating  the  act  of  Congress  for  punishing  similar 
animadversions  on  the  Government  of  the  United 
States. 

The  last  remark  will  not  be  understood  as  claiming 
for  the  State  Government  an  immunity  greater  than 
they  have  heretofore  enjoyed.  Some  degree  of  abuse 
is  inseparable  from  the  proper  use  of  everything ;  and 
in  no  instance  is  this  more  true  than  in  that  of  the 
press.  It  has  accordingly  been  decided,  by  the  prac- 
tice of  the  States,  that  it  is  better  to  leave  a  few  of  its 
noxious  branches  to  their  luxuriant  growth,  than,  by 
pruning  them  away,  to  injure  the  vigor  of  those  yield- 
ing the  proper  fruits.  And  can  the  wisdom  of  this 
policy  be  doubtful  by  any  one  who  reflects  that  to 
the  press  alone,  checkered  as  it  is  with  abuses,  the 
world  is  indebted  for  all  the  triumphs  which  have 


STATE  EIGHTS  111 

been  gained  by  reason  and  bumanity  over  error  and 
oppression;  wbo  reflects  that  to  the  same  beneficent 
source  the  United  States  owe  much  of  the  lights 
which  conducted  them  to  the  rank  of  a  free  and  inde- 
pendent nation,  and  which  have  improved  their  poli- 
tical system  into  a  shape  so  auspicious  to  their  happi- 
ness ?  Had  Sedition  Acts,  forbidding  every  publica- 
tion that  might  bring  the  constituted  agents  into  con- 
tempt or  disrepute,  or  that  might  excite  the  hatred 
of  the  people  against  the  authors  of  unjust  or  per- 
nicious measures,  been  uniformly  enforced  against 
the  press,  might  not  the  United  States  have  been  lan- 
guishing at  this  day  under  the  infirmities  of  a  sickly 
Confederation?  Might  they  not,  possibly,  be  miser- 
able colonies,  groaning  under  a  foreign  yoke  ? 

To  these  observations  one  fact  will  be  added,  which 
demonstrates  that  the  common  law  cannot  be  ad- 
mitted as  the  universal  expositor  of  American  terms, 
which  may  be  the  same  with  those  contained  in  that 
law.  The  freedom  of  conscience,  and  religion,  is 
found  in  the  same  instrument  which  asserts  the  free- 
dom of  the  press.  It  will  never  be  admitted  that  the 
meaning  of  the  former,  in  the  common  law  of  Eng- 
land, is  to  limit  their  meaning  in  the  United  States. 

Whatever  weight  may  be  allowed  to  these  con- 
siderations, the  committee  do  not,  however,  by  any 
means  intend  to  rest  the  question  on  them.  They 
contend  that  the  article  of  the  amendment,  instead 
of  supposing  in  Congi'ess  a  power  that  might  be  exer- 
cised over  the  press,  provided  its  freedom  was  not 


112  A  STUDY  IN 

abridged,  meant  a  positive  denial  to  Congress  of  any 
power  whatever  on  the  subject. 

To  demonstrate  that  this  was  the  true  object  of  the 
article,  it  will  be  sufficient  to  recall  the  circumstances 
which  led  to  it,  and  to  refer  to  the  explanation  accom- 
panying the  article. 

When  the  Constitution  was  under  the  discussions 
which  preceded  its  ratification,  it  is  well  known  that 
great  apprehensions  were  expressed  by  many,  lest  the 
omission  of  some  positive  exception,  from  the  powers 
delegated,  of  certain  rights,  and  of  the  freedom  of 
the  press  particularly,  might  expose  them  to  danger 
of  being  drawn,  by  construction,  within  some  of  the 
powers  vested  in  CongTess;  more  especially  of  the 
power  to  make  all  laws  necessary  and  proper  for 
carrying  their  other  powers  into  execution.  In  reply 
to  this  objection,  it  w^as  invariably  urged  to  be  a 
fundamental  and  characteristic  principle  of  the  Con- 
stitution, that  all  powers  not  given  by  it  were  re- 
served ;  that  no  powers  were  given  beyond  those  enum- 
erated in  the  Constitution,  and  such  as  were  fairly 
incident  to  them ;  that  the  power  over  the  rights  in 
question,  and  particularly  over  the  press,  was  neither 
among  the  enumerated  powers,  nor  incident  to  any 
of  them ;  and  consequently  that  an  exercise  of  any 
such  power  would  be  manifest  usurpation.  It  is 
painful  to  remark  how  much  the  arguments  now  em- 
ployed in  behalf  of  the  Sedition  Act  are  at  variance 
with  the  reasoning  which  then  justified  the  Constitu- 
tion, and  invited  its  ratification. 


STATE  RIGHTS  113 

From  this  posture  of  the  subject  resulted  the  inter- 
esting question,  in  so  many  of  the  conventions, 
whether  the  doubts  and  dangers  ascribed  to  the  Con- 
stitution should  be  removed  by  any  amendments  pre- 
vious to  the  ratification,  or  be  postponed,  in  confidence 
that,  as  far  as  they  might  be  proper,  they  would  be 
introduced  in  the  form  provided  by  the  Constitution. 
The  latter  course  was  adopted;  and  in  most  of  the 
States,  ratifications  were  followed  by  the  propositions 
and  instructions  for  rendering  the  Constitution  more 
explicit,  and  more  safe  to  the  rights  not  meant  to  be 
delegated  by  it.  Among  those  rights,  the  freedom  of 
the  press,  in  most  instances,  is  particularly  and  em- 
phatically mentioned.  The  firm  and  very  pointed 
manner  in  which  it  is  asserted  in  the  proceedings  of 
the  convention  of  this  State  will  hereafter  be  seen. 

In  pursuance  of  the  wishes  thus  expressed,  the  first 
Congress  that  assembled  under  the  Constitution  pro- 
posed certain  amendments,  which  have  since,  by  the 
necessary  ratifications,  been  made  a  part  of  it ;  among 
which  amendments  is  the  article  containing,  among 
other  prohibitions  on  the  Congress,  an  express  decla- 
ration that  they  should  make  no  law  abridging  the 
freedom  of  the  press. 

Without  tracing  farther  the  evidence  on  this  sub- 
ject, it  would  seem  scarcely  possible  to  doubt  that  no 
power  whatever  over  the  press  was  supposed  to  be 
delegated  by  the  Constitution,  as  it  originally  stood, 
and  that  the  amendment  was  intended  as  a  positive 
and  absolute  reservation  of  it. 


114  A  STUDY  m 

But  the  evidence  is  still  stronger.  The  proposition 
of  amendments  made  by  Congress  is  introduced  in 
the  following  terms: 

"The  conventions  of  a  number  of  the  States,  hav- 
ing, at  the  time  of  their  adopting  the  Constitution, 
expressed  a  desire,  in  order  to  prevent  misconstruc- 
tion or  abuse  of  its  powers,  that  further  declaratory 
and  restrictive  clauses  should  be  added;  and  as  ex- 
tending the  ground  of  public  confidence  in  the  Gov- 
ernment, will  best  insure  the  beneficent  ends  of  its 
institution." 

Here  is  the  most  satisfactory  and  authentic  proof 
that  the  several  amendments  proposed  were  to  be 
considered  as  either  declaratory  or  restrictive,  and, 
whether  the  one  or  the  other,  as  corresponding  with 
the  desire  expressed  by  a  number  of  the  States,  and 
is  extending  the  ground  of  public  confidence  in  the 
Government. 

Under  any  other  construction  of  the  amendment 
relating  to  the  press,  than  that  it  declared  the  press 
to  be  wholly  exempt  from  the  power  of  Congress,  the 
amendment  could  neither  be  said  to  correspond  with 
the  desire  expressed  by  a  number  of  the  States,  nor 
be  calculated  to  extend  the  ground  of  public  confi- 
dence in  the  Government. 

'Naj,  more;  the  construction  employed  to  justify 
the  Sedition  Act  would  exhibit  a  phenomenon  with- 
out a  parallel  in  the  political  world.  It  would  ex- 
hibit a  number  of  respectable  States,  as  denying, 
first,  that  any  power  over  the  press  was  delegated  by 


STATE  RIGHTS  115 

the  Constitution;  as  proposing,  next,  that  no  such 
power  was  delegated;  and,  finally,  as  concurring  in 
an  amendment  actually  recognizing  or  delegating 
such  a  power. 

Is  then,  the  Federal  Government,  it  will  he  asked, 
destitute  of  every  authority  for  restraining  the  licen- 
tiousness of  the  press,  and  for  shielding  itself  against 
the  lihellous  attacks  which  may  be  made  on  those 
who  administer  it  ? 

The  Constitution  alone  can  answer  this  question. 
If  no  such  power  be  expressly  delegated,  and  if  it  be 
not  both  necessary  and  proper  to  carry  into  execution 
an  express  power;  above  all,  if  it  be  expressly  for- 
bidden by  a  declaratory  amendment  to  the  Constitu- 
tion,— the  answer  must  be,  that  the  Federal  Govern- 
ment is  destitute  of  all  such  authority. 

And  might  it  not  be  asked,  in  turn,  whether  it  is 
not  more  probable,  under  all  the  circumstances  which 
have  been  reviewed,  that  the  authority  should  be 
withheld  by  the  Cbnstitution,  than  that  it  should  be 
left  to  a  vague  and  violent  construction,  whilst  so 
much  pains  were  bestowed  in  enumerating  other 
powers,  and  so  many  less  important  powers  are  in- 
cluded in  the  enumeration? 

Might  it  not  be  likewise  asked,  whether  the  anxious 
circumspection  which  dictated  so  many  peculiar 
limitations  on  the  general  authority,  would  be  un- 
likely to  exempt  the  press  altogether  from  that  author- 
ity ?  The  peculiar  magnitude  of  some  of  the  powers 
necessarily  committed  to  the  Federal  Government; 


116  A  STUDY  m 

the  peculiar  duration  required  for  the  functions  of 
some  of  its  departments ;  the  peculiar  distance  of  the 
seat  of  its  preceedings  from  the  great  body  of  its  con- 
stituents; and  the  peculiar  difficulty  of  circulating 
an  adequate  knowledge  of  them  through  any  other 
channel; — will  not  these  considerations,  some  or 
other  of  which  produced  other  exceptions  from  the 
powers  of  ordinary  Governments,  altogether,  account 
for  the  policy  of  binding  the  hands  of  the  Federal 
Government  from  touching  the  channel  which  alone 
can  give  efficacy  to  its  responsibility  to  its  constitu- 
ents, and  of  leaving  those  who  administer  it  to  a 
remedy,  for  their  injured  reputations,  under  the  same 
laws,  and  in  the  same  tribunals,  which  protect  their 
lives,  their  liberties,  and  their  properties  ?  But  the 
question  does  not  turn  either  on  the  wisdom  of  the 
Constitution,  or  on  the  policy  which  gave  rise  to  its 
particular  organization.  It  turns  on  the  actual  mean- 
ing of  the  instrument,  by  which  it  has  appeared  that 
a  power  over  the  press  is  clearly  excluded  from  the 
number  of  powers  delegated  to  the  Federal  Govern- 
ment. 

3.  And  in  the  opinion  of  the  committee,  well  may 
it  be  said,  as  the  resolution  concludes  with  saying, 
that  the  unconstitutional  power  exercised  over  the 
press  by  the  Sedition  Act,  ought,  "more  than  any 
other,  to  produce  universal  alarm ;  because  it  is 
levelled  against  that  right  of  freely  examining  public 
characters,  and  measures,  and  of  free  communica- 
tion among  the  people  thereon,  which  has  ever  been 


STATE  RIGHTS  117 

justly  deemed  the  only  effectual  guardian  of  every 
other  right." 

Without  scrutinizing  minutely  into  all  the  provi- 
sions of  the  Sedition  Act,  it  will  be  sufficient  to  cite 
so  much  of  section  2d  as  follows : — "And  be  it  further 
enacted,  that  if  any  shall  write,  print,  utter,  or  pub- 
lish, or  shall  cause  or  procure  to  be  written,  printed, 
uttered,  or  published,  or  shall  knowingly  and  will- 
ingly assist  or  aid  in  writing,  printing,  uttering,  or 
publishing  any  false,  scandalous  and  malicious  writ- 
ing or  writings  against  the  Government  of  the  United 
States,  or  either  house  of  the  CongTess  of  the  United 
States,  with  an  intent  to  defame  the  said  Government, 
or  either  house  of  the  said  Congress,  or  the  President, 
or  to  bring  them,  or  either  of  them  into  contempt  or 
disrepute,  or  to  excite  against  them,  or  either,  or  any 
of  them,  the  hatred  of  the  good  people  of  the  United 
States,  etc., — then  such  persons,  being  thereof  con- 
victed before  any  court  of  the  United  States  having 
jurisdiction  thereof,  shall  be  punished  by  a  fine  not 
exceeding  two  thousand  dollars,  and  by  imprisonment 
not  exceeding  two  years." 

On  this  part  of  the  act  the  following  observations 
present  themselves : 

1.  The  Constitution  supposes  that  the  President, 
the  Congress,  and  each  of  its  houses,  may  not  dis- 
charge their  trusts,  either  from  defect  of  judgment  or 
other  causes.  Hence  they  are  all  made  responsible 
to  their  constituents,  at  the  returning  periods  of  elec- 
tions ;  and  the  President,  who  is  singly  intrusted  with 


118  A  STUDY  m 

very  great  powers,  is  as  a  further  guard,  subjected  to 
an  intermediate  impeachment. 

2.  Should  it  happen,  as  the  Constitution  supposes 
it  may  happen,  that  either  of  these  branches  of  the 
Government  may  not  have  duly  discharged  its  trust, 
it  is  natural  and  proper,  that,  according  to  the  cause 
and  degree  of  their  faults,  they  should  be  brought 
into  contempt  or  disrepute,  and  incur  the  hatred  of 
the  people. 

3.  Whether  it  has,  in  any  case,  happened  that  the 
proceedings  of  either  or  all  of  those  branches  evince 
such  a  violation  of  duty  as  to  justify  a  contempt,  a 
disrepute,  or  hatred  among  the  people,  can  only  be 
determined  by  a  free  examination  thereof,  and  a  free 
communication  among  the  people  thereon. 

4.  Whenever  it  may  have  actually  happened  that 
proceedings  of  this  sort  are  chargeable  on  all  or 
either  of  the  branches  of  the  Government,  it  is  the 
duty,  as  well  as  the  right,  of  intelligent  and  faithful 
citizens  to  discuss  and  promulgate  them  freely — as 
well  to  control  them  by  the  censorship  of  the  public 
opinion,  as  to  promote  a  remedy  according  to  the 
rules  of  the  Constitution.  And  it  cannot  be  avoided 
that  those  who  are  to  apply  the  remedy  must  feel,  in 
some  degree,  a  contempt  or  hatred  against  the  trans- 
gressing party. 

5.  As  the  act  was  passed  on  July  14,  1798,  and  is 
to  be  in  force  until  March  3,  1801,  it  was  of  course 
that,  during  its  continuance,  two  elections  of  the 
entire  House  of  Representatives,   an   election  of  a 


STATE  EIGHTS  119 

part  of  the  Senate,  and  an  election  of  a  President, 
were  to  take  place. 

6.  That,  consequently,  during  all  these  elections, — 
intended,  bj  the  Constitution,  to  preserve  the  purity 
or  to  purge  the  faults  of  the  administration, — the 
great  remedial  rights  of  the  people  were  to  be  exer- 
cised, and  the  responsibility  of  their  public  agents  to 
be  screened,  under  the  penalties  of  this  act. 

May  it  not  be  asked  of  every  intelligent  friend  to 
the  liberties  of  his  country,  whether  the  power  exer- 
cised in  such  an  act  as  this  ought  not  to  produce  great 
and  universal  alarm  ?  Whether  a  rigid  execution  of 
such  an  act,  in  time  past,  would  not  have  repressed 
that  information  and  communication  among  the 
people  which  is  indispensable  to  the  just  exercise  of 
their  electoral  rights  ?  And  whether  such  an  act,  if 
made  perpetual,  and  enforced  with  vigor,  would  not, 
in  time  to  come,  either  destroy  our  free  system  of 
government,  or  prepare  a  convulsion  that  might  prove 
equally  fatal  to  it  ? 

In  answer  to  such  questions,  it  has  been  pleaded 
that  the  writings  and  publications  forbidden  by  the 
act  are  those  only  which  are  false  and  malicious,  and 
intended  to  defame ;  and  merit  is  claimed  for  the 
privilege  allowed  to  authors  to  justify,  by  proving  the 
truth  of  their  publications,  and  for  the  limitations  to 
which  the  sentence  of  fine  and  imprisonment  is  sub- 
jected. 

To  those  who  concurred  in  the  act,  under  the  ex- 
traordinary belief  that  the  option  lay  between  the 


120  A  STUDY  I:N' 

passing  of  such  an  act,  and  leaving  in  force  the  com- 
mon law  of  libels,  whicli  punishes  truth  equally  with 
falsehood,  and  submits  fine  and  imprisonment  to  the 
indefinite  discretion  of  the  court,  the  merit  of  good 
intentions  ought  surely  not  to  be  refused.  A  like 
merit  may  perhaps  be  due  for  the  discontinuance  of 
the  corporal  punishment,  which  the  common  law 
also  leaves  to  the  discretion  of  the  court.  This  merit 
of  intention,  however,  would  have  been  greater  if  the 
several  mitigations  had  not  been  limited  to  so  short  a 
period;  and  the  apparent  inconsistency  would  have 
been  avoided,  between  justifying  the  act,  at  one  time, 
by  contrasting  it  with  the  rigors  of  the  common  law 
otherwise  in  force ;  and  at  another  time,  by  appealing 
to  the  nature  of  the  crisis,  as  requiring  the  temporary 
rigor  exerted  by  the  act. 

But  whatever  may  have  been  the  meritorious  inten- 
tions of  all  or  any  who  contributed  to  the  Sedition 
Act,  a  very  few  reflections  will  prove  that  its  baleful 
tendency  is  little  diminished  by  the  privilege  of  giv- 
ing in  evidence  the  truth  of  the  matter  contained  in 
political  writings. 

In  the  first  place,  where  simple  and  naked  facts 
alone  are  in  question,  there  is  sufficient  difficulty  in 
some  cases,  and  sufficient  trouble  and  vexation  in  all, 
in  meeting  a  prosecution  from  the  Government  with 
the  full  and  formal  proof  necessary  in  a  court  of  law. 

But  in  the  next  place  it  must  be  obvious  to  the 
plainest  minds,  that  opinions  and  inferences,  and  con- 
jectural observations,  are  not  only  in  many  cases  in- 


STATE  EIGHTS  121 

separable  from  the  facts,  but  may  often  be  more  the 
objects  of  the  prosecution  than  the  facts  themselves; 
or  may  even  be  altogether  abstracted  from  particular 
facts;  and  that  opinion,  and  inferences,  and  conjec- 
tural observations,  cannot  be  subjects  of  that  kind  of 
proof  which  appertains  to  facts,  before  a  court  of 
law. 

Again:  it  is  no  less  obvious  that  the  intent  to  de- 
fame, or  bring  into  contempt,  or  disrepute,  or  hatred, 
— which  is  made  a  condition  of  the  offence  created 
by  the  act, — cannot  prevent  its  pernicious  influence 
on  the  freedom  of  the  press.  For,  omitting  the  in- 
quiry, how  far  the  malice  of  the  intent  is  an  infer- 
ence of  the  law  from  the  mere  publication,  it  is  mani- 
festly impossible  to  punish  the  intent  to  bring  those 
who  administer  the  Government  into  disrepute  or 
contempt,  without  striking  at  the  right  of  freely  dis- 
cussing public  characters  and  measures ;  because  those 
who  engage  in  such  discussions  must  expect  and  in- 
tend to  excite  these  unfavorable  sentiments,  so  far  as 
they  may  be  thought  to  be  deserved.  To  prohibit  the 
intent  to  excite  those  unfavorable  sentiments  against 
those  who  administer  the  Government,  is  equivalent  to 
a  prohibition  of  the  actual  excitement  of  them ;  and 
to  prohibit  of  the  actual  excitement  of  them  is  equiva- 
lent to  a  prohibition  of  discussions  having  that  ten- 
dency and  effect:  which,  again,  is  equivalent  to  a 
protection  of  those  who  administer  the  Government, 
if  they  should  at  any  time  deserve  the  contempt,  or 
hatred  of  the  people,  against  being  exposed  to  it,  by 


122  A  STUDY  IN 

free  animadversions  on  their  characters  and  conduct. 
Nor  can  there  be  a  doubt,  if  those  in  public  trust  be 
shielded  by  penal  laws  from  such  strictures  of  the 
press  as  may  expose  them  to  contempt,  or  disrepute, 
or  hatred,  where  they  may  deserve  that,  in  exact  pro- 
portion as  they  may  deserve  to  be  exposed,  will 
be  the  certainty  and  criminality  of  the  intent  to  ex- 
pose them,  and  the  vigilance  of  prosecuting  and  pun- 
ishing it;  nor  a  doubt  that  a  Government  thus 
intrenched  in  penal  statutes  against  the  just  and 
natural  effects  of  a  culpable  administration,  will 
easily  evade  the  responsibility  which  is  essential  to  a 
faithful  discharge  of  its  duty. 

Let  it  be  recollected,  lastly,  that  the  right  of  elect- 
ing the  members  of  the  Government  constitutes  more 
particularly  the  essence  of  a  free  and  responsible 
Government.  The  value  and  eflScacy  of  this  right 
depends  on  the  knowledge  of  the  comparative  merits 
and  demerits  of  the  candidates  for  public  trust,  and 
on  the  equal  freedom,  consequently,  of  examining 
and  discussing  these  merits  and  demerits  of  the  can- 
didates respectively.  It  has  been  seen  that  a  number 
of  important  elections  will  take  place  while  the  act 
is  in  force,  although  it  should  not  be  continued  beyond 
the  term  to  which  it  is  limited.  Should  there  hap- 
pen, then,  as  is  extremely  probable  in  relation  to 
some  one  or  other  of  the  branches  of  the  Government, 
to  be  competitions  between  those  who  are,  and  those 
who  are  not,  members  of  the  Government,  what  vdll 
be  the  situations  of  the  competitors  ?    it^ot  equal ;  be- 


STATE  RIGHTS  123 

cause  the  characters  of  the  former  will  be  covered  by 
the  Sedition  Act  from  animadversions  exposing  them 
to  disrepute  among  the  people,  whilst  the  latter  may 
be  exposed  to  the  contempt  and  hatred  of  the  people 
without  a  violation  of  the  act.  What  will  be  the  sit- 
uation of  the  people  ?  N^ot  free ;  because  they  will  be 
compelled  to  make  their  elections  between  competitors 
whose  pretensions  they  are  not  permitted  by  the  act 
equally  to  examine,  to  discuss,  and  to  ascertain.  And 
from  both  these  situations  will  not  those  in  power 
derive  an  undue  advantage  for  continuing  themselves 
in  it;  which,  by  impairing  the  right  of  election, 
endangers  the  blessings  of  the  Government  founded 
on  it? 

It  is  with  justice,  therefore,  that  the  General 
Assembly  have  affirmed,  in  the  resolution,  as  well 
that  the  right  of  freely  examining  public  characters 
and  measures,  and  of  communication  thereon,  is  the 
only  effectual  guardian  of  every  other  right,  as  that 
this  particular  right  is  levelled  at  by  the  power  exer- 
cised in  the  Sedition  Act. 

The  resolution  next  in  order  is  as  follows: 
"That  this  State  having,  by  its  Convention,  which, 
ratified  the  Federal  Constitution,  expressly  declared 
that,  among  other  essential  rights,  'the  liberty  of 
conscience  and  of  the  press  cannot  be  cancelled, 
abridged,  restrained,  or  modified,  by  any  authority 
of  the  United  States' ;  and,  from  its  extreme  anxiety 
to  guard  these  rights  from  every  possible  attack  of 
sophistry  and  ambition,  having,  with  other  States, 


124  A  STUDY  IN 

recommended  an  amendment  for  tliat  purpose,  which 
amendment  was  in  due  time  annexed  to  the  Constitu- 
tion, it  would  mark  a  reproachful  inconsistency,  and 
criminal  degeneracy,  if  an  indifference  were  now 
shown  to  the  most  palpable  violation  of  one  of  the 
rights  thus  declared  and  secured,  and  to  the  estab- 
lishment of  a  precedent  which  may  be  fatal  to  the 
other." 

To  place  this  resolution  in  its  just  light,  it  will  be 
necessary  to  recur  to  the  act  of  ratification  by  Vir- 
ginia, which  stands  in  the  ensuing  form : 

"We,  the  delegates  of  the  people  of  Virginia,  duly 
elected  in  pursuance  of  a  recommendation  from  the 
General  Assembly,  and  now  met  in  convention,  hav- 
ing fully  and  freely  investigated  and  discussed  the 
proceedings  of  the  Federal  Convention,  and  being 
prepared,  as  well  as  the  most  mature  deliberation  hath 
enabled  us,  to  decide  thereon, — do,  in  the  name  and 
in  behalf  of  the  people  of  Virginia,  declare  and  make 
known,  that  the  powers  granted  under  the  Constitu- 
tion, being  derived  from  the  people  of  the  United 
States,  may  be  resumed  by  them  whensoever  the  same 
shall  be  perverted  to  their  injury  or  oppression ;  and 
that  every  power  not  granted  thereby  remains  with 
them,  and  at  their  will.  That,  therefore,  no  right  of 
any  denomination  can  be  cancelled,  abridged,  re- 
strained, or  modified,  by  the  Congress,  by  the  Senate, 
or  the  House  of  Representatives,  acting  in  any  capac- 
ity, by  the  President,  or  any  department  or  officer  of 
the  United  States,  except  in  those  instances  in  which 


STATE  RIGHTS  125 

power  is  given  by  the  Constitution  for  those  purposes ; 
and  that,  among  other  essential  rights,  the  liberty  of 
conscience  and  of  the  press  cannot  be  cancelled, 
abridged,  restrained,  or  modified,  by  any  authority 
of  the  United  States." 

Here  is  an  express  and  solemn  declaration  by  the 
Convention  of  the  State,  that  they  ratified  the  Con- 
stitution in  the  sense  that  no  right  of  any  denomina- 
tion can  be  cancelled,  abridged,  restrained,  or  modi- 
fied, by  the  Government  of  the  United  States,  or  any 
part  of  it,  except  in  those  instances  in  which  power  is 
given  by  the  Constitution ;  and  in  the  sense,  particu- 
larly, "that  among  other  essential  rights,  the  liberty 
of  conscience  and  freedom  of  the  press  cannot  be 
cancelled,  abridged,  restrained,  or  modified,  by  any 
authority  of  the  United  States." 

Words  could  not  well  express,  in  a  fuller  or  more 
forcible  manner,  the  understanding  of  the  Conven- 
tion, that  the  liberty  of  conscience  and  freedom  of 
the  press  were  equally  and  completely  exempted  from 
all  authority  whatever  of  the  United  States. 

Under  an  anxiety  to  guard  more  effectually  these 
rights  against  every  possible  danger,  the  Convention, 
after  ratifying  the  Constitution,  preceeded  to  prefix 
to  certain  amendments  proposed  by  them,  a  declara- 
tion of  rights,  in  which  are  two  articles  providing,  the 
one  for  the  liberty  of  conscience,  the  other  for  the 
freedom  of  speech  and  of  the  press. 

Similar  recommendations  having  proceeded  from  a 
number  of  other  States;  and  Congress,  as  has  been 


126  A  STUDY  IN 

seen,  having,  in  consequence  thereof,  and  with  a  view 
to  extend  the  ground  of  public  confidence,  proposed, 
among  other  declaratory  and  restrictive  clauses,  a 
clause  expressly  securing  the  liberty  of  conscience 
and  of  the  press;  and  Virginia  having  concurred  in 
the  ratifications  which  made  them  a  part  of  the  Con- 
stitution,— it  will  remain  with  a  candid  public  to  de- 
cide whether  it  would  not  mark  an  inconsistency  and 
degeneracy,  if  an  indifference  were  now  shown  to  a 
palpable  violation  of  one  of  those  rights — the  free- 
dom of  the  press ;  and  to  a  precedent,  therein,  which 
may  be  fatal  to  the  other — the  free  exercise  of 
religion. 

That  the  precedent  established  by  the  violation  of 
the  former  of  these  rights  may,  as  is  affirmjed  by  the 
resolution,  be  fatal  to  the  latter,  appears  to  be  demon- 
strable by  a  comparison  of  the  grounds  on  which  they 
respectively  rest,  and  from  the  scope  of  reasoning 
by  which  the  power  of  the  former  has  been  vindi- 
cated. 

First.  Both  of  these  rights,  the  liberty  of  con- 
science and  of  the  press,  rest  equally  on  the  original 
ground  of  not  being  delegated  by  the  Constitution, 
and  consequently  withheld  from  the  government. 
Any  construction,  therefore,  that  would  attack  this 
original  security  for  the  one,  must  have  the  like 
effect  on  the  other. 

Secondly.  They  are  both  equally  secured  by  the 
supplement  to  the  Constitution ;  being  both  included 
in  the  same  amendment,  made  at  the  same  time  and 


STATE  EIGHTS  127 

by  the  same  authority.  Any  construction  or  argu- 
ment, then,  which  would  turn  the  amendment  into  a 
grant,  or  acknowledgment  of  power,  with  respect  to 
the  press,  might  be  equally  applied  to  the  freedom  of 
religion. 

Thirdly.  If  it  be  admitted  that  the  extent  of  the 
freedom  of  the  press,  secured  by  the  amendment,  is 
to  be  measured  by  the  common  law  on  this  subject, 
the  same  authority  may  be  resorted  to  for  the  stand- 
ard which  is  to  fix  the  extent  of  the  "free  exercise  of 
religion."  It  cannot  be  necessary  to  say  what  this 
standard  would  be — whether  the  common  law  be 
taken  solely  as  the  unwritten,  or  as  varied  by  the  writ- 
ten law  of  England. 

Fourthly.  If  the  words  and  phrases  in  the  amend- 
ment are  to  be  considered  as  chosen  with  a  studied 
discrimination,  which  yields  an  argument  for  a  power 
over  the  press,  under  the  limitation  that  its  freedom 
be  not  abridged,  the  same  argument  results  from  the 
same  consideration,  for  a  power  over  the  exercise  of 
religion,  under  the  limitation  that  its  freedom  be  not 
prohibited. 

For,  if  Congress  may  regulate  the  freedom  of  the 
press,  provided  they  do  not  abridge  it,  because  it  is 
said  only,  'they  shall  not  abridge  it,"  and  is  not  said, 
"they  shall  make  no  law  respecting  it,"  the  analogy 
of  reasoning  is  conclusive,  that  Congress  may  regu- 
late, and  even  abridge,  the  free  exercise  of  religion, 
provided  they  do  not  prohibit  it;  because  it  is  said 
only,    "they  shall  not  prohibit";   and  is  not  said, 


128  A  STUDY  IN 

''thej  shall  make  no  law  respecting,  or  no  law  abridg- 
ing it." 

The  General  Assembly  were  governed  by  the  clear- 
est reason,  then,  in  considering  the  Sedition  Act, 
which  legislates  on  the  freedom  of  the  press,  as  estab- 
lishing a  precedent  that  may  be  fatal  to  the  liberty 
of  conscience ;  and  it  will  be  the  duty  of  all,  in  pro- 
portion as  they  value  the  security  of  the  latter,  to 
take  the  alarm  at  every  encroachment  on  the  former. 

The  two  concluding  resolutions  only  remain  to  be 
examined.    They  are  in  the  words  following : 

"That  the  good  people  of  this  Commonwealth, 
having  ever  felt,  and  continuing  to  feel,  the  most 
sincere  affection  for  their  brethren  of  the  other  States, 
the  truest  anxiety  for  establishing  and  perpetuating 
the  union  of  all,  and  the  most  scrupuloiis  fidelity  to 
that  Constitution  which  is  the  pledge  of  mutual 
friendship  and  the  instrument  of  mutual  happiness, 
— the  General  Assembly  doth  solemnly  appeal  to  the 
like  dispositions  in  the  other  States,  in  confidence  that 
they  will  concur  with  this  Commonwealth  in  declar- 
ing, as  it  does  hereby  declare,  that  the  acts  aforesaid 
are  unconstitutional;  and  that  the  necessary  and 
proper  measures  will  be  taken,  by  each,  for  co-operat- 
ing with  this  State,  in  maintaining,  unimpaired,  the 
the  authorities,  rights,  and  liberties,  reserved  to  the 
States  respectively,  or  to  the  people. 

"That  the  Governor  be  desired  to  transmit  a  copy 
of  the  foregoing  resolutions  to  the  executive  authority 
of   each  of  the  other   States,   with   a   request  that 


STATE  RIGHTS  129 

the  same  may  be  commimieated  to  the  Legislature 
thereof,  and  that  a  copy  be  furnished  to  each  of  the 
Senators  and  Representatives  representing  this  State 
in  the  Congress  of  the  United  States." 

The  fairness  and  regularity  of  the  course  of  pro- 
ceeding here  pursued,  have  not  protected  it  against 
objections  even  from  sources  too  respectable  to  be 
disregarded. 

It  has  been  said  that  it  belongs  to  the  judiciary  of 
the  United  States,  and  not  the  State  Legislatures,  to 
declare  the  meaning  of  the  Federal  Constitution. 

But  a  declaration  that  proceedings  of  the  Federal 
Government  are  not  warranted  by  the  Constitution  is 
a  novelty  neither  among  the  citizens  nor  among  the 
Legislatures  of  the  States;  nor  are  the  citizens  or 
the  Legislature  of  Virginia  singular  in  the  example 
of  it. 

!N'or  can  the  declarations  of  either,  whether  affirm- 
ing or  denying  the  constitutionality  of  measures  of 
the  Federal  Government,  or  whether  made  before  or 
after  judicial  decisions  thereon,  be  deemed,  in  any 
point  of  view,  an  assumption  of  the  office  of  the  judge. 
The  declarations  in  such  cases  are  expressions  of 
opinion,  unaccompanied  with  any  other  effect  than 
what  they  may  produce  on  opinion,  by  exciting  re- 
flection. The  expositions  of  the  judiciary,  on  the 
other  hand,  are  carried  into  immediate  effect  by  force. 
The  former  may  lead  to  a  change  in  the  legislative 
expression  of  the  general  will — possibly  to  a  change 
in  the  opinion  of  the  judiciary;  the  latter  enforces 


130  A  STUDY  IN 

the  general  will,  whilst  that  will  and  that  opinion  con- 
tinue unchanged. 

And  if  there  be  no  impropriety  in  declaring  the 
unconstitutionality  of  proceedings  in  the  Federal 
Government,  where  can  there  be  the  impropriety  of 
communicating  the  declaration  to  other  States,  and 
inviting  their  concurrence  in  a  like  declaration  ? 
What  is  allowable  for  one,  must  be  allowable  for  all ; 
and  a  free  communication  among  the  States,  where 
the  Constitution  imposes  no  restraint,  is  as  allowable 
among  the  State  governments  as  among  other  public 
bodies  or  private  citizens.  This  consideration  de- 
rives a  weight  that  cannot  be  denied  to  it,  from  the 
relation  of  the  State  Legislatures  to  the  Federal  Legis- 
lature as  the  immediate  constituents  of  one  of  its 
branches. 

The  Legislatures  of  the  States  have  a  right  also  to 
originate  amendments  to  the  Constitution,  by  a  con- 
currence of  two-thirds  of  the  whole  number,  in  ap- 
plications to  Congress  for  the  purpose.  When  new 
States  are  to  be  formed  by  a  junction  of  two  or  more 
States,  or  parts  of  States,  the  Legislatures  of  the 
States  concerned  are,  as  well  as  Congi'ess,  to  concur 
in  the  measure.  The  States  have  a  right  also  to  enter 
into  agreements  or  compacts,  with  the  consent  of 
Congress.  In  all  such  cases  a  communication  among 
them  results  from  the  object  which  is  common  to 
them. 

It  is  lastly  to  be  seen,  whether  the  confidence  ex- 
pressed by  the  Constitution,  that  the  necessary  and 


STATE  RIGHTS  131 

proper  measures  would  be  taken  by  tbe  other  States 
for  co-operating  with  Virginia  in  maintaining  the 
rights  reserved  to  the  States,  or  to  the  people,  be  in 
any  degree  liable  to  the  objections  raised  against  it. 

If  it  be  liable  to  objections,  it  must  be  because 
either  the  object  or  the  means  are  objectionable. 

The  object,  being  to  maintain  what  the  Constitu- 
tion has  ordained,  is  in  itself  a  laudable  object. 

The  means  are  expressed  in  the  terms  "the  neces- 
sary and  proper  measures."  A  proper  object  was  to 
be  pursued  by  the  means  both  necessary  and  proper. 

To  find  an  objection,  then,  it  must  be  shown  that 
some  meaning  was  annexed  to  these  general  terms 
which  was  not  proper;  and,  for  this  purpose,  either 
that  the  means  used  by  the  General  Assembly  were 
an  example  of  improper  means,  or  that  there  were  no 
proper  means  to  which  the  terms  could  refer. 

In  the  example,  given  by  the  State,  of  declaring 
the  Alien  and  Sedition  Acts  to  be  unconstitutional, 
and  of  communicating  the  declaration  to  other  States, 
no  trace  of  improper  means  has  appeared.  And  if 
the  other  States  had  concurred  in  making  a  like 
declaration,  supported,  too,  by  the  numerous  applica- 
tions flowing  immediately  from  the  people,  it  can 
scarcely  be  doubted  that  these  simple  means  would 
have  been  as  sufficient  as  they  are  unexceptionable. 

It  is  no  less  certain  that  other  means  might  have 
been  employed  which  are  strictly  within  the  limits  of 
the  Constitution.  The  Legislatures  of  the  States 
might  have  made  a  direct  representation  to  Congress, 


132  A  STUDY  IN 

with  a  view  to  obtain  a  rescinding  of  the  two  offen- 
sive acts,  or  tbey  might  have  represented  to  their 
respective  Senators  in  Congress  their  wish  that  two- 
thirds  thereof  would  propose  an  explanatory  amend- 
ment to  the  Constitution ;  or  two-thirds  of  themselves, 
if  such  had  been  their  opinion,  might,  by  an  applica- 
tion to  Congress,  have  obtained  a  convention  for  the 
same  object. 

These  several  means,  though  not  equally  eligible 
in  themselves,  nor  probably  to  the  States,  were  all 
constitutionally  open  for  consideration.  And  if  thg 
General  Assembly,  after  declaring  the  two  acts  to  be 
unconstitutional  (the  first  and  most  obvious  proceed- 
ing on  the  subject),  did  not  undertake  to  point  out  to 
the  other  States  a  choice  among  the  further  measures 
that  might  become  necessary  and  proper,  the  reserve 
will  not  be  misconstrued  by  liberal  minds  into  any 
culpable  imputation. 

These  observations  appear  to  form  a  satisfactory 
reply  to  every  objection  which  is  not  founded  on  a 
misconception  of  the  terms  employed  in  the  resolu- 
tions. There  is  one  other,  however,  which  may  be 
of  too  much  importance  not  to  be  added.  It  cannot 
be  forgotten  that,  among  the  arguments  addressed  to 
those  who  apprehended  danger  to  liberty  from  the 
establishment  of  the  General  Government,  over  so 
great  a  country,  the  appeal  was  emphatically  made  to 
the  intermediate  existence  of  the  State  Governments 
between  the  people  and  that  government,  to  the  vigil- 
ance with  which  they  would  descry  the  first  symp- 


STATE  EIGHTS  133 

toms  of  "usurpation,  and  to  the  promptitude  with 
which  they  would  sound  the  alarm  to  the  public.  This 
argument  was  probably  not  without  its  effect ;  and  if 
it  was  a  proper  one  then  to  recommend  the  establish- 
ment of  a  Constitution,  it  must  be  a  proper  one  now 
to  assist  in  its  interpretation. 

The  only  part  of  the  two  concluding  resolutions 
that  remains  to  be  noticed,  is  the  repetition,  in  the 
first,  of  that  warm  affection  to  the  Union  and  its 
members,  and  of  that  scrupulous  fideltity  to  the  Con- 
stitution, which  have  been  invariably  felt  by  the 
people  of  this  State.  As  the  proceedings  were  intro- 
duced with  these  sentiments,  they  could  not  be  more 
properly  closed  than  in  the  same  manner.  Should 
there  be  any  so  far  misled  as  to  call  in  question  the 
sincerity  of  these  professions,  whatever  regret  may 
be  excited  by  the  error,  the  General  Assembly  cannot 
descend  into  discussion  of  it.  Those  who  have  lis- 
tened to  the  suggestion  can  only  be  left  to  their  own 
recollection  of  the  part  which  this  State  has  borne  in 
the  establishment  of  our  national  independence,  or 
the  establishment  of  our  national  Constitution,  and  in 
maintaining  under  it  the  authority  and  laws  of  the 
Union,  without  a  single  exception  of  internal  resist- 
ance or  commotion.  By  recurring  to  the  facts,  they 
will  be  able  to  convince  themselves  that  the  repre- 
sentatives of  the  people  of  Virginia  must  be  above  the 
necessity  of  opposing  any  other  shield  to  attacks  on 
their  national  patriotism,  than  their  own  conscien- 
tiousness, and  the  justice  of  an  enlightened  public; 


134  A  STUDY  IN 

who  will  perceive  in  the  resolutions  themselves  the 
strongest  evidence  of  attachment,  both  to  the  Consti- 
tution and  the  Union,  since  it  is  only  by  maintaining 
the  different  governments,  and  the  departments  within 
their  respective  limits,  that  the  blessings  of  either  can 
be  perpetuated. 

The  extensive  view  of  the  subject,  thus  taken  by 
the  committee,  has  led  them  to  report  to  the  House, 
as  the  result  of  the  whole,  the  following  resolution : 

Resolved,  That  the  General  Assembly,  having  care- 
fully and  respectfully  attended  to  the  proceedings  of 
a  number  of  the  States,  in  answer  to  the  Resolutions 
of  December  21,  1798,  and  having  accurately  and 
fully  re-examined  and  reconsidered  the  latter,  find  it 
to  he  their  indispensable  duty  to  adhere  to  the  same, 
as  founded  in  truth,  as  consonant  with  the  Constitu- 
tion, and  as  conducive  to  its  preservation ;  and  more 
especially  to  be  their  duty  to  renew,  as  they  do  hereby 
renew,  their  Protest  against  Alien  and  Sedition 
Acts,  as  palpable  and  alarming  infractions  of  the  Con- 
stitution. 


STATE  RIGHTS 


CHAPTER  IV 

DISTOETIONS    OF   HISTORY   OF   THE  ACTS   OF    THE 
CONVENTION 

It  ought  to  be  enough  to  write  out  the  account  of 
the  acts  of  the  convention  of  1787  to  show  that  the 
men  who  have  undertaken  to  write  history  of  that 
time  have  not  written  the  facts  of  history,  but  have 
recorded  the  opinions  of  dog-matic  politicians.  Much 
has  been  written  and  accepted  as  true  about  the 
formation  and  ratification  of  the  Constitution  which 
has  no  foundation  in  fact.  It  is  our  purpose  in  this 
chapter  to  present  some  of  these  "historical  facts"  to 
see  if  in  the  light  of  the  record  of  the  case  they  ought 
to  be  accepted. 

1.  Consider  Mr.  John  Fiske'is  statement:  "It  has 
sometimes  been  said  that  the  Union  was  in  its  origin 
a  league  of  sovereign  States,  each  of  which  surren- 
dered a  specific  portion  of  its  sovereignty  to  the 
Federal  Government  for  the  sake  of  the  common 
welfare.  Grave  political  arguments  have  been  based 
upon  this  alleged  fact,  but  such  account  of  the  matter 
is  not  historically  true.  There  never  was  a  time  when 
Massachusetts  or  Virginia  was  an  absolutely  sovereign 
State  like  Holland  or  France."  Critical  Period  of 
American  History,  John  Fiske,  p.  90. 

135 


136  A  STUDY  IN 

We  cannot  recall  that  it  was  ever  our  misfortune 
to  have  heard  a  designing  politician  make  a  statement 
so  contrary  and  contradictory  to  the  facts  in  the  case 
as  this  statement  is.  What  can  Fiske  mean  ?  Did  he 
never  read  the  Declaration  of  Independence?  Is  it 
not  written  there  that  they  asserted  and  fought  for 
their  freedom  and  independence  ?  Did  he  never  read 
the  treaty  made  hy  his  Britannic  Majesty,  in  which, 
mentioning  the  States  by  name,  he  recognizes  them 
as  "free,  sovereign,  and  independent  States"  ?  Can 
it  be  that  he  was  ignorant  of  the  Articles  of  Con- 
federation, in  which  each  State  is  named?  And  in 
Article  II  it  is  written,  "Each  State  retains  its 
sovereignty,  freedom,  and  independence,"  etc.  It 
is  strange  if  he  has  written  about  that  period  of  our 
country's  history  and  knows  not  of  these.  It  is 
strange,  too,  that  he  does  not  give  us  some  authority 
for  such  a  statement  as  quoted  above.  What  are  we 
to  accept  as  history  in  the  case,  the  Declaration  of 
Independence,  the  Articles  of  Confederation,  the 
treaty  made  with  Great  Britain,  or  Mr.  John  Fiske's 
dictum  ?  If  Mr.  Fiske  was  ignorant  of  these  docu- 
ments he  should  at  least  have  read  them  and  the 
history  of  their  making  before  attempting  to  instruct 
men  concerning  that  "critical  period  of  our  history." 
If  he  was  familiar  with  them,  and  in  spite  of  his 
knowledge  of  their  plain  statements,  insists  on  such 
assertion  as  above,  the  reader  can  put  him  where  he 
belongs ;  we  decline  to  do  so.     So  long  as  the  docu- 


STATE  RIGHTS  13T 

ments  herein  mentioned  must  be  accepted  as  his- 
tory Mr.  Fiske's  statement  must  be  ignored  and  re- 
jected. 

Again  he  says:  "Could  a  State  once  adopt  the 
Constitution  and  then  withdraw  from  the  Union? 
Mr.  Madison's  reply  was  prompt  and  decisive.  ISTo 
such  thing  could  ever  be  done.  A  State  which  had 
once  ratified  was  in  the  federal  bond  forever.  The 
Constitution  could  not  provide  for,  nor  contemplate, 
its  own  overthrow.  There  could  be  no  such  thing  as 
a  constitutional  right  of  secession."  (Critical 
Period  J  p.  344.) 

On  this  statement  two  comments  must  be  written. 

First,  what  Mr.  Madison  did  say  was  that  no  State 
after  ratifying  could  withdraw  simply  on  the  ground 
of  dissatisfaction, — that  is,  merely  because  there 
might  be  something  in  the  working  of  the  machinery 
of  the  federal  govermnent  that  might  displease  some 
of  the  States,  tlierefore  they  would  withdraw.  To 
this  his  answer  was  no,  there  could  be  no  temporary 
or  probationary  trial.  The  Constitution  was  accepted 
in  good  faith,  or  rejected. 

Second.  If  Mr.  Fiske  meant  that  Mr.  Madison  was 
responsible  for  the  statement  "that  the  Constitution 
could  not  provide  for  nor  contemplate  its  own  over- 
throw, there  could  be  no  such  a  thing  as  a  constitu- 
tional right  of  secession,"  it  is,  to  say  the  least,  un- 
fortunate that  Fiske  failed  to  tell  us  where  and  under 
what  circumstances  Mr.  Madison  said  such  a  thing; 
for  we  know  that  Madison  was  one  of  those  who 


138  A  STUDY  IN" 

adopted  the  Constitution  witli  the  Tinderstanding  that 
if  the  powers  granted  to  the  federal  government 
should  ever  be  used  for  the  oppression  or  injury  of 
the  people,  these  delegated  powers  should  be  resuraed 
by  the  people  of  the  united  States.  He  believed  and 
taught  that  there  was  a  constitutional  way  to  take 
back  the  powers  granted.  (  See  Virginia  act  adopting 
Constitution.  Elliott's  Debates,  vol.  i,  p.  32 Y.)  If 
these  were  the  words  with  which  Mr.  Madison  ac- 
cepted the  Constitution,  it  must  be  shown  why  and 
where  he  said  the  contrary.  If  Mr.  Madison  did  not 
say  in  words  or  substance  that  there  could  be  "no  such 
thing  as  a  constitutional  right  of  secession," — and 
Mr.  Fiske  does  say  it, — it  is  incumbent  upon  Mr. 
Fiske  to  show  his  authority  for  the  statement. 

Three  of  the  States,  'New  York,  Virginia,  and 
Rhode  Island,  reserved  the  right  of  resuming  the 
powers  granted  the  federal  government  when  the 
federal  government  used  them  to  oppress  any  State. 
(See  Elliott's  Debates  in  loco.)  Mr.  Fiske's  state- 
ment about  this  matter  does  not  agree  with  the  record 
of  the  case,  so  can  not  be  received  as  history. 

2.  Consider  next  what  Mr.  Motley  says  in  ex- 
planation of  the  nature  and  meaning  of  the  Consti- 
tution. His  views  are  set  forth  in  The  Rebellion 
Record,  vol.  i,  pp.  210,  211.  I  ask  the  reader  to 
study  carefully  and  note  every  sentence  of  Motley's 
declaration  in  this  statement.  He  says,  in  speaking 
of  the  Constitution :  "It  was  not  a  compact.  Whoever 
heard  of  a  compact  to  which  there  are  no  parties  ?  Who^ 


STATE  EIGHTS  139 

ever  heard  of  a  compact  made  by  a  single  party  with 
himself?  Yet  the  name  of  no  State  is  mentioned 
in  the  whole  document.  The  States  themselves  are 
only  mentioned  to  receive  commands  or  prohibitions, 
and  the  people  of  the  United  States  is  the  single 
party  by  whom  alone  the  instrument  is  executed. 
The  Constitution  was  not  drawn  up  by  the  States; 
it  was  not  promulgated  in  the  name  of  the  States ;  it 
was  not  ratified  by  the  States.  The  States  never 
acceded  to  it,  and  possess  no  power  to  secede  from  it. 
It  was  '^ordained  and  established'  over  the  States  by 
a  power  superior  to  the  States,  by  the  people  of 
the  whole  land  in  their  aggregate  capacity,  acting 
through  conventions  of  delegates  expressly  chosen 
for  the  purpose  within  each  State,  independently  of 
the  State  governments,  after  the  project  had  been 
framed." 

Mr,  Motley  was  a  man  of  vast  learning.  He  was 
well  known  as  the  author  of  works  on  history  that 
had  taken  years  of  patient  and  laborious  study  to 
complete.  He  was  distinguished  as  a  scholar  among 
his  countrymen,  and  at  one  time  honored  by  an  ap- 
pointment as  minister  plenipotentiary  to  a  foreign 
court.  Is  it  not  one  of  those  surprising,  unaccounta- 
ble things  in  the  history  of  men,  that  one  who  was 
familiar  as  Mr.  Motley  was — or  who  was  supposed 
to  be — with  the  history  of  his  country,  should  have 
written  this  declaration  about  the  nature  and  the 
meaning  of  the  Constitution?  Did  he  suppose  that 
because  he  was  a  historian  of  almost  world-wide  repu- 


140  A  STUDY  m 

tation  that  men  would  accept  his  statement  without 
any  investigation  ?  Anyone  who  was  at  all  conver- 
sant with  the  circumstances  which  called  for  the 
convention  of  1787,  the  way  in  which  that  conven- 
tion was  constituted,  the  method  in  which  what  they 
did  became  the  law  of  the  land,  could  not,  would 
not,  have  written  that  declaration  about  the 
bond  of  the  federal  union.  Mr.  Motley  says  they 
(the  States)  did,  not  accede  to  the  Constitution. 
General  Washington  says  they  did.  In  a  letter  to 
Bushrod  Washington,  ISTovember  10,  1787,  he  uses 
this  language:  "Let  the  opponents  of  the  proposed 
Constitution  in  this  State  be  asked,  and  it  is  a  ques- 
tion they  certainly  ought  to  ask  themselves,  what  line 
of  conduct  they  would  advise  it  to  adopt  if  nine  other 
States,  of  which  I  think  there  is  little  doubt,  should 
accede  to  the  Constitution."  Mr.  Motley  says  that 
the  government  is  no  confederacy.  General  Wash- 
ington styles  it  "the  new  Confederacy."  (Washing- 
ton's Writings,  vol.  ix,  pp.  389,  390.) 

Mr.  Motley  says  it  wajs  not  ratified  by  the  States, 
it  was  not  a  compact.  The  official  action  of  Massa- 
chusetts, in  adopting  the  Constitution,  is  in  language 
such  as  this:  "Acknowledging  with  grateful  hearts 
the  goodness  of  the  Supreme  Ruler  of  the  universe  in 
affording  the  people  of  the  United  States  in  the  course 
of  his  providence  an  opportunity,  deliberately  and 
peacefully,  without  fraud  or  surprise,  of  entering 
into  an  explicit  and  solemn  compact  with  each  other, 
by    assenting    to    and    ratifying    a    new    Constitu- 


STATE  EIGHTS  141 

tion  .  .  .  assent  to^  and  ratify  the  said  Con- 
stitution for  the  United  States  of  America."  (See 
Elliott's  Debates,  vol.  i,  pp.  322,  323.)  Mr.  Motley 
says  it  was  "ordained  and  established  over  the 
States."  Article  VII  (q.  v.)  of  the  Constitution  says 
that  it  was  ratified  between,  not  over,  the  States. 
(q.  V.)  He  says  it  was  adopted  by  the  people  in 
their  "aggregate  capacity,"  by  which  I  suppose  is 
meant  the  whole  people.  Article  VII  {q.  v.)  says 
"done  in  convention  by  the  unanimous  consent  of  the 
States  present."  (q.  v.)  Whatever  the  motive  may 
have  been  for  this  distinguished  gentleman  to  have 
written  these  declarations  as  history,  we  see  they 
contradict  the  official  records  in  the  case  and  there- 
fore cannot  be  accepted. 

Whom  shall  we  accept  as  authority  in  the  matter  1 
The  official  papers,  which  in  minuteness  of  detail  tell 
us  of  the  origin  of  the  convention,  of  the  acts  of  that 
convention,  and  how  those  acts  embodied  in  the  writ- 
ten document  called  the  Constitution  became  the 
law  of  the  land,  or  shall  we  accept  Mr.  Motley's  dic- 
tum ?  He  who  seeks  for  the  truth  in  the  matter  must 
hold  to  the  former.  We  must  remember  that  Mr. 
Motley  was  a  diplomat;  and  diplomats  occasionally 
write  things  which  are  not  history,  though  some- 
times made  to  pass  for  such.  His  views  express  the 
political  dogma  of  his  political  party,  but  cannot  be 
received  as  the  true  history  of  the  case,  for  the  of- 
ficial records  deny  it.  Mr,  Motley  may  be  authority 
in  the  affairs  of  the  Dutch  Republic,  but  he  has  put 


142  A  STUDY  IN" 

himself  beyond  all  trustwortliiness  as  a  historian  of 
the  republic  of  the  United  States.  Possibly  he  ac- 
cepted Mr.  Justice  Story  and  Mr.  Daniel  Webster's 
theory  of  the  government  of  the  United  States,  and 
used  his  iafluence  to  maintain  the  position  which 
they  assumed.  That  they  should  have  maintained 
such  views  as  they  express  is  one  of  those  strange 
things  in  the  history  of  this  matter. 

Justice  Story  in  his  Commentaries  on  the  Con- 
stitution says  the  first  resolution  passed  was:  "Ee- 
solved,  that  a  national  government  ought  to  be  estab- 
lished, consisting  of  a  supreme  judicial,  legislative, 
and  executive."  On  this  Mr.  Story  bases  the  whole 
argument  for  his  theory  of  the  government  of  the 
United  States.  We  have  seen  in  chapter  II,  from  the 
records  of  the  case,  that  this  resolution  was  adopted 
with  the  word  "national."  On  motion  of  Mr.  Ells- 
worth, of  Connecticut,  with  Mr.  Gorham,  of  Massa- 
chusetts, as  second,  it  was  unanimously  stricken  out. 
(See  Madison  Papers,  p.  909.)  For  "national"  they 
substitute  the  "Government  of  the  United  States." 

!N'ow  upon  what  the  convention  did  not  do,  indeed, 
as  Mr.  Madison  says,  "unanimously  refused  to  do," 
Mr.  Story  bases  his  exposition  of  the  theory  of  our 
government;  and  Mr.  Webster  in  1833,  in  the  Senate, 
argued  for  its  acceptance  with  that  skill  and  peculiar 
eloquence  for  which  he  was  distinguished.  It  has 
been  said  that  no  speech  ever  made  such  an  impres- 
sion upon  the  minds  of  the  people  of  the  United 
States  as  did  the  one  Mr.  Webster  delivered  in  the 


STATE  EIGHTS  143 

Senate  cliamber  February  16,  1833.  It  was  in  op- 
position to  Mr.  Callioun's  series  of  resolutions  intro- 
duced January  22,  1833.  (See  Niles  Register,  vol. 
xliii,  appendix,  p.  170.)  Mr.  Webster  did  not  di- 
rectly reply  to  the  arguments  of  Mr.  Calhoun  in  his 
speech  against  the  bill  (known  as  the  Force  bill)\ 
but  had  his  (Calhoun's)  resolutions  read,  and  de- 
livered his  speech  against  these  resolutions.  The  Cal- 
houn resolutions  follow,  and  we  beg  that  they  be  read 
carefully. 

^'Resolved,  that  the  people  of  the  several  States 
composing  these  United  States  are  united  as  parties 
to  a  constitutional  compact  to  which  the  people  of 
each  State  acceded  as  a  separate  and  sovereign  com- 
munity, each  binding  itself  by  its  own  particular 
ratification;  and  that  the  Union  of  which  the  said 
compact  is  the  bond,  is  a  union  between  the  States 
ratifying  the  same. 

"Resolved,  that  the  people  of  the  several  States, 
thus  united  by  a  constitutional  compact,  in  forming 
that  instrument,  and  in  creating  a  general  govern- 
ment to  carry  into  effect  the  objects  for  which  they 
were  formed,  delegated  to  that  government,  foT  that 
purpose,  certain  definite  powers,  to  be  exercised 
jointly,  reserving,  at  the  same  time,  each  State  to 
itself,  the  residuary  mass  of  powers,  to  be  exercised 
by  its  own  separate  government;  and  that  whenever 
the  general  government  assumes  the  exercise  of 
powers  not  delegated  by  the  compact,  its  acts  are  un- 
authorized, and  are  of  no  effect;  and  that  the  same 


144  A  STUDY  IN 

government  is  not  made  the  final  judge  of  the  powers 
delegated  to  it,  since  that  would  make  its  discretion, 
and  not  the  Constitution,  the  measure  of  its  powers ; 
but  that,  as  in  all  other  cases  of  compact  among 
sovereign  parties,  without  any  common  judge,  each 
has  an  equal  right  to  judge  for  itself,  as  well  of  the 
infraction  as  the  mode  and  measure  of  redress. 

"Resolved,  that  the  assertions,  that  the  people  of 
these  United  States,  taken  collectively  as  individuals, 
are  now,  or  ever  have  been,  united  on  the  principle  of 
social  compact,  and,  as  such,  are  now  formed  into 
one  nation  or  a  people,  or  that  they  have  ever  been  so 
united  in  any  one  stage  of  their  political  existence; 
that  the  people  of  the  several  States  composing  the 
Union  have  not,  as  members  thereof,  retained  their 
sovereignty;  that  the  allegiance  of  their  citizens  has 
been  transferred  to  the  general  government ;  that  they 
have  parted  with  the  right  of  punishing  treason 
through  their  respective  State  governments ;  and  that 
they  have  not  the  right  of  judging  in  the  last  resort 
as  to  the  extent  of  the  powers  reserved,  and  of  con- 
sequence of  those  delegated, — are  not  only  without 
foundation  in  truth,  but  are  contrary  to  the  most 
certain  and  plain  historical  facts,  and  the  clearest 
deductions  of  reason ;  and  that  all  exercise  of  power 
on  the  part  of  the  general  government,  or  any  of  its 
departments,  claiming  authority  from  such  erroneous 
assumptions,  must  of  necessity  be  unconstitutional, 
must  tend,  directly  and  inevitably,  to  subvert  the 
sovereignty  of  the  State,  to  destroy  the  federal  char- 


STATE  RIGHTS  145 

acter  of  the  Union,  and  to  rear  on  its  ruins  a  con- 
solidated government,  without  constitutional  check 
or  limitation,  and  which  must  necessarily  terminate 
in  the  loss  of  liberty  itself." 

Against  the  principles  herein  set  forth  Mr.  Web- 
ster hurled  the  thunderbolts  of  his  eloquence  in  that 
style  of  rhetorical  flash  peculiar  to  himself.  His 
speech  was  read  and  memorized  by  men  and  youth  all 
over  the  country,  and  his  teachings  were  accepted  as 
the  true  account  of  the  nature  of  the  government  of 
the  United  States,  and  men  would  go  no  further  in 
their  study  of  the  question.  This  is  why  the  speech 
is  considered  so  remarkable.  There  is  no  need  that 
we  reproduce  it  here.  It  would  be  well  if  it  could 
be  forgotten,  for  Mr.  Webster's  sake  as  well  as  the 
people's  sake,  except  as  a  specimen  of  the  wonderful 
power  of  language  in  the  hands  of  a  master.  The 
best  refutation  of  Webster's  views  is  seen  in  the 
history  of  the  adoption  of  the  Constitution. 

Webster  was  identified  with  the  men  who  con- 
tended for  the  federal  character  of  the  government, 
but  he  argued  for  nationalism,  the  very  thing  all 
federalists  repudiated.  He  declared  the  Constitu- 
tion was  not  a  compact.  His  State,  Massachusetts, 
declared  in  her  official  act  of  ratification  that  it  was 
a  compact.  But  the  best  comment  on  the  speech  we 
have  ever  seen  is  by  Senator  Lodge,  of  Massachusetts, 
in  his  Life  of  Daniel  Webster,  published  by  Hough- 
ton-Mifflin Co.,  in  "Series  of  American  Statesmen." 
Mr.  Lodge,  in  speaking  of  this  oration,  says  (p.  176)  : 


146  A  STUDY  IN 

"It  was  probably  necessary,  at  all  events  Mr.  Web- 
ster felt  it  to  be  so,  to  argue  tbat  tbe  Constitution 
at  tbe  outset  was  not  a  compact  between  tbe  States 
but  a  national  instrument,  and  to  distinguisb  the 
cases  of  Virginia  and  Kentucky  in  1799  and  of  IsTew 
England  in  1814  from  that  of  South  Carolina  in 
1830;  unfortunately  the  facts  were  against  him  in 
both  instances.  When  the  Constitution  was  adopted 
by  the  States  at  Philadelphia,  and  accepted  by  the 
votes  of  the  States  in  popular  convention,  it  is  safe 
to  say  that  there  was  not  a  man  in  the  country,  from 
Washington  and  Hamilton,  on  the  one  side,  to 
George  Clinton  and  George  Mason,  on  the  other,  who 
regarded  the  new  system  as  anytliing  but  an  experi- 
ment, entered  upon  by  the  States,  and  from  which 
each  and  every  State  had  the  right  peaceably  to  with- 
draw; a  right  which  was  very  likely  to  be  exercised." 

We  doubt  if  the  case  could  have  been  better  repre- 
sented than  in  that  statement.  And  well  may  the 
question  be  asked,  if  the  States  had  the  right  then 
to  withdraw,  what  has  transpired  since  to  take  away 
that  right  ?  Shall  we  say,  the  results  of  the  war  of 
'61-'65  ?  That  only  settled  the  question  as  to  whether 
more  than  two  million  men,  with  arms  in  their  hands, 
could  force  six  hundred  thousand,  with  arms  in  their 
hands,  to  yield  to  the  demands  of  the  larger  force. 

I  own  a  horse.  What  do  I  mean  ?  Why,  the  law 
of  the  land  protects  me  in  the  right  to  use  and  keep 
that  horse  as  long  as  I  choose.  Four  men  come  into 
the  field  armed,  overpower  me,  and  take  the  horse 


STATE  EIGHTS  147 

from  me:  does  that  do  away  vnth.  what  the  law  re- 
gards as  my  right  in  the  ownership  of  the  animal? 
To  say  that  the  war  settled  the  question  of  the  rights 
of  the  States  is  to  say  that  "might  is  right."  But 
correct  reasoning  denies  and  abhors  this  doctrine. 
Shall  it  be  said  that  the  majority  rule  has  cut  the 
rights  of  the  States  out  ?  That  because  the  majority 
of  the  people  say  the  States  have  no  rights,  therefore 
they  can  have  none  ?  Then  what  is  the  use  of  the 
Constitution  ?  Why  not  set  it  aside  as  a  useless 
thing?  A  careful  study  of  the  matter  will  convince 
an  unprejudiced  mind  that  in  a  government  with  a 
written  constitution  the  majority  should  administer 
the  laws  according  to  the  principles  set  forth  in  the 
written  document  known  as  the  Constitution.  Mr. 
Webster  made  much  in  his  argument  of  the  phrase, 
"We,  the  people  of  the  United  States."  He  insisted, 
and  all  of  those  indeed  who  hold  to  his  theory  of  the 
Constitution  insist,  that  these  words  show  the  au- 
thority of  a  national  government.  They  contend  that 
it  eminated  from  the  people  in  the  aggregate.  !N'ow, 
if  this  is  true,  when  was  it  done?  Is  there  any 
record  of  a  national  or  federal  convention  or  delegates 
of  the  people  ignoring  State  lines  or  State  authority, 
through  whose  acts,  regardless  of  the  States,  the 
Constitution  became  the  law  of  the  land  ?  Where 
did  such  a  convention  meet,  and  when  ?  The  phrase, 
"We,  the  people  of  the  United  States,"  has  a  history 
as  to  its  meaning  and  its  origin  which  is  a  matter  of 
record.     That  is  to  say,  that  from  the  record  in  the 


148  A  STUDY  IN" 

case  the  reason  and  purpose  of  using  that  expression 
is  made  perfectly  plain.  It  is  a  matter  of  record 
that  in  the  original  draft  of  the  Constitution  the 
names  of  the  States  were  written  therein  in  full,  as 
thej  had  been  in  the  Articles  of  Confederation.  They 
were  changed  by  what  was  known  as  "the  committee 
on  style."  This  was  a  committee  to  which  the  Con- 
stitution was  referred,  to  give  it  a  finish  in  language 
and  expression  after  it  had  been  agreed  upon.  This 
committee  saw  fit  to  substitute  for  the  names  of  the 
States  the  phrase,  "We,  the  people  of  the  United 
States,"  This  phrase  was  permitted  to  stand  in  the 
instrument,  for  the  members  of  the  convention  knew 
that  the  States  previously  named  made  up  the  United 
States. 

One  fact  of  record  that  goes  to  show  that  no 
idea  of  nationality  was  entertained  is  that  when  Mr. 
Morris,  of  ITew  York,  moved  "that  the  reference  of 
the  plan  [t.  e.,  the  Constitution]  be  made  to  one 
general  convention  chosen  and  authorized  by  the 
people  to  consider  amend  and  establish  the  same," 
(See  Madison  Papers,  1184.)  the  motion  received  no 
second.  If  this  motion  had  prevailed  there  might 
have  been  some  ground  for  the  nationalism  of  Mr. 
Webster  and  his  school,  but  it  was  not  entertained 
for  a  moment.  It  cannot  be,  therefore,  that  the  con- 
vention of  1787  saw  in  the  phrase  "We,  the  people," 
etc.,  anything  like  a  centralized  government.  It  is 
further  evident  that  Mr.  Morris  did  not  believe  when 
he,  as  chairman  of  the  "committee  on  style,"  mado 


STATE  RIGHTS  149 

this  cliange  it  taught  nationalism,  for  he  says  "the 
Constitution  was  a  compact  not  between  individuals, 
but  between  political  societies;  the  people  not  of 
America,  but  of  the  United  States,  each  enjoying 
sovereign  power  and  of  course  equal  rights."  See 
Morris:  Life  and  Writings,  vol.  iii,  p.  193.) 

One  reason,  maybe  the  chief  reason,  that  the  idea 
of  a  national  government  was  not  in  issue,  was  that 
it  was  not  absolutely  certain  that  all  thirteen  of  the 
States  would  adopt  the  Constitution ;  then  why  name 
in  the  bond  those  about  whom  there  was  any  doubt  ? 
Whatever  the  reason  may  have  been,  it  is  certainly 
true  it  was  not  to  convey  the  idea,  or  to  set  forth  the 
fact,  that  the  government  of  the  United  States  was 
a  national  government.  And  this  fact  Mr.  Webster 
himself  asserted  in  a  speech  he  made  at  Capon 
Springs,  Ya.,  June  28,  1851.  In  this  speech  he 
uses  this  language:  "I  have  not  hesitated  to  say, 
and  I  repeat,  that  if  the  J^orthern  States  refuse  wil- 
fully and  deliberately  to  carry  into  effect  that  part 
of  the  Constitution  which  respects  the  restoration  of 
fugitive  slaves,  and  CongTess  provide  no  remedy,  the 
South  would  no  longer  be  bound  to  observe  the  com- 
pact. A  bargain  cannot  be  broken  on  one  side  and 
still  bind  the  other  side.  I  say  to  you  gentlemen  in 
Virginia,  as  I  said  on  the  shores  of  Lake  Erie  and 
in  the  city  of  Boston,  as  I  may  say  again  in  that 
city,  and  elsewhere  in  the  ]!Torth,  that  you  of  the 
South  have  as  much  right  to  receive  your  fugitive 
slaves  as  the  N^orth  has  to  any  of  its  rights  and  privi- 


150  A  STUDY  IN 

leges  of  navigation  and  commerce."  From  tbese 
words  it  will  be  seen  that  Mr.  Webster,  the  "Great 
Expounder  of  the  Constitution,"  seceded  from  the 
position  he  formerly  occupied  and  acceded  to  the  view 
contended  for  bj  Mr.  Jefferson,  Mr.  Calhoun,  and 
Mr.  Jefferson  Davis ;  that  the  States  had  rights  under 
the  Constitution,  and  that  there  was  no  authority  in 
the  federal  government  save  that  granted  by  the 
people  of  the  States,  and  when  the  powers  granted 
the  federal  government  were  used  for  the  injury  or 
oppression  of  any  of  the  States,  these  powers  were  to 
be  taken  away,  or,  what  is  the  same  thing,  were  not 
to  be  recognized. 

All  power  granted  in  the  Censtitution  was  to  be 
obeyed.  When  the  federal  government  attempted  to 
use  power  not  given  by  the  "solemn  compact"  the 
States  were  not  expected  to  recognize  it.  Another 
reason  for  the  use  of  the  phrase,  "We,  the  people 
of  the  United  States,"  is  found  in  a  careful  study 
of  the  Madison  Papers  from  page  735  to  1632.  It 
will  there  be  clearly  seen  that  the  question  before 
the  convention  was  as  to  whether  the  Constitution 
was  to  be  adopted  by  the  legislature  of  the  States  or 
by  the  people  of  each  State  in  convention.  It  was 
never  before  that  convention  as  to  whether  the  people 
as  a  whole — the  people  in  the  aggregate — or  the 
people  of  the  States,  should  vote  on  the  adoption 
of  the  Constitution.  It  was  the  question  as  to 
whether  the  Constitution  should  be  adopted  by  the 
legislature  of  each  State  or  by  the  people  of  each 


STATE  EIGHTS  151 

State  in  convention  assembled.  Mr.  Mason,  of  Vir- 
ginia, objected  to  the  legislature  adopting  it  because 
he  "considered  a  reference  of  the  plan  to  the  authority 
of  the  people  as  one  of  the  most  important  and  essen- 
tial of  the  resolutions.  The  legislatures  have  no 
power  to  ratify  it."  Another  strong  reason,  said  he, 
was  "admitting  the  legislatures  to  have  a  competent 
authority;  it  would  be  wrong  to  refer  the  plan  to 
them,  because  succeeding  legislatures,  having  equal 
authority,  could  undo  the  acts  of  their  predecessors." 
(Madison  Papers,  1177.)  Mr.  Madison  also  con- 
tended for  the  same  method ;  he  says :  "For  these 
reasons,  as  well  as  for  others,"  he  thought  it  "indis- 
pensable that  the  new  Constitution  should  be  ratified 
in  the  exceptionable  form  and  by  the  supreme  author- 
ity of  the  people  themselves."  Madison  Papers,  p. 
796.) 

Mr.  Webster  was  guilty  of  quoting  the  statements 
of  men  of  that  convention  in  a  way  that  misrepre- 
sented them.  For  example,  in  quoting  from  Mr. 
Hamilton,  in  the  twenty-second  number  of  The 
Federalist,  he  so  uses  the  language  of  Mr.  Hamilton 
as  to  make  it  appear  that  his  (Mr.  Webster's)  argu- 
ment rests  upon  Mr.  Hamilton's  authority.  Says 
The  Federalist,  ISTo.  22:  "The  fabric  of  American 
empire  ought  to  rest  on  the  solid  basis  of  the  con- 
sent of  the  people."  Mr.  Webster  adds,  "Such  is 
the  language,  sir,  addressed  to  the  people  while  they 
yet  had  the  Constitution  under  consideration.  The 
powers  conferred  on  the  new  government  were  per- 


152  A  STUDY  IN 

fectly  well  understood  to  be  conferred,  not  bj  any 
State,  or  the  people  of  any  State,  but  by  the  people 
of  the  United  States."  If  Mr.  Webster  had  given 
in  his  quotation  the  whole  context  in  which  this  lan- 
guage occurs,  it  would  have  destroyed  the  force  of  hi^ 
presumptions.  Mr.  Hamilton  was  speaking  as  to 
whether  the  plan  should  be  submitted  to  the  legisla- 
tures of  the  States  or  the  people  of  the  States.  He 
writes :  "It  has  not  a  little  contributed  to  the  infirmi- 
ties of  the  existing  federal  system,  that  it  never  had 
a  ratification  of  the  people.  Resting  on  no  better 
foundation  than  the  consent  of  several  legislatures, 
it  has  been  exposed  to  the  frequent  and  intricate 
question  concerning  the  validity  of  its  powers,  and 
has  in  some  instances  given  rise  to  the  enormous 
doctrine  of  legislature  repeal."  If  Webster's  method 
of  applying  language  in  this  instance  is  correct  and 
righteous,  we  can  take  the  Bible  and  prove  that  there 
is  no  Divine  Being. 

Psalm  14:  I  says:  "There  is  no  God."  E"ow  we 
might  say,  do  you  not  see  if  you  accept  the  Bible  as 
true,  this  Book  says  that  there  is  no  Grod  ?  So  it  must 
be  true.  But  when  we  read  the  whole  verse  it  con- 
veys a  very  different  meaning.  What  would  be 
thought  of  an  expounder  of  Scripture  who  would 
quote  Scripture  in  that  way?  Ought  we  honor  an 
expounder  of  the  Constitution,  though  he  be  called 
the  "Great  Expounder,"  any  more  than  we  would 
of  that  perverter  of  the  language  of  Holy  Writ  ?  We 
think  not. 


STATE  EIGHTS  153 

We  cannot  accept  Mr.  Webster's  theory  of  the 
federal  government  for  two  reasons,  viz. : 

1.  It  falsifies  and  contradicts  the  facts  of  history 
respecting  the  mode  of  creating  that  government. 

2.  It  makes  the  phrase,  "We,  the  people,"  contra- 
dict Article  VII  of  the  Constitution.  The  record  in 
the  case  further  shows  that  Mr.  Hamilton's  view 
of  the  method  of  adopting  the  Constitution  is  just 
the  opposite  of  that  of  Mr.  Webster. 

In  The  Federalist,  ISTo.  39,  speaking  of  the  adop- 
tion of  the  Constitution,  it  is  written :  "This  assent 
and  ratification  is  to  be  given  by  the  people,  not  as 
individuals  comprising  one  entire  nation,  but  as 
comprising  the  distinct  and  independent  States  to 
which  they  respectively  belong.  It  is  to  be  the  assent 
and  ratification  of  the  several  States  derived  from 
the  supreme  authority  in  each  State,  the  authority 
of  the  people  themselves.  The  act,  therefore,  estab- 
lishing the  Constitution,  will  not  be  a  national,  but 
a  federal  act."  But  Mr.  Webster  says  not  so.  Now 
whom  are  we  to  accept  as  authority  in  this  matter, 
Mr.  Hamilton  or  Mr.  Webster  ?  Who  has  the  better 
right  to  speak  with  authority  on  this,  Mr.  Hamil- 
ton or  Mr.  Webster  ? 

Thus  we  see  that  the  men  who  made  the  Constitu- 
tion insisted  that  it  was  made  by  the  States,  that  it 
was  a  union  of  States,  that  the  States  continued  in 
their  existence  in  the  union,  with  all  the  rights  they 
ever  had,  as  free,  and  independent,  and  sovereign; 
that  the  Constitution  was  a  bond  between  the  States 


154  A  STUDY  IN 

and  not  a  government  over  the  States ;  that  there  was 
no  power  or  authority  in  the  federal  goveroment 
save  that  which  was  delegated  by  the  States,  and  that 
these  delegated  powers  could  be  withdrawn  by  the 
States  when  they  (the  powers  delegated)  were  being 
used  to  the  oppression  or  detriment  of  the  States.  It 
is  incumbent,  therefore,  upon  those  who  deny  the 
States'  rights  to  show  where  and  when  and  how  these 
rights  ceased  to  exist ;  to  show  where  they  (the  States) 
gave  up  all  rights.  The  records  of  the  convention,  the 
explanations  of  the  men  who  wrote  the  Constitution, 
the  written  accounts  of  how  the  Constitution  became 
operative,  all  go  to  show  that  the  rights  of  the  States 
are  a  fundamental  fact,  a  basic  principle  of  our 
federal  government.  The  man  who  denies  this  prin- 
ciple, and  does  things  to  destroy  it,  is  a  revolutionist. 
The  man  who  does  what  the  terms  of  the  bond  of  union 
tell  him  he  may  do,  ought  not  to  be  considered  the 
one  breaking  the  law.  The  one  who  refuses  to  do 
what  the  bond  of  the  union  tells  him  he  must  do,  is 
the  one  who  breaks  the  law.  The  one  who  exercises 
power  not  delegated  in  the  bond  which  makes  the 
union,  is  the  one  who  violates  the  law  of  that  union. 
The  record  in  the  case  shows  that  the  people  of 
the  United  States  adopted  the  Constitution,  but  they 
adopted  it  as  States,  not  in  the  aggregate.  The  federal 
government  is  the  creature  of  the  States,  acting  in 
their  sovereign  right  through  the  people  of  each 
State.  There  is  no  such  thing  as  a  national  govern- 
ment of  the  United  States.     It  was  prohibited  by 


STATE  RIGHTS  155 

the  action  of  the  convention  of  1787.  To  saj  that 
the  federal  government  was  a  government  over  the 
States,  and  not  between  the  States,  is  to  deny  the 
plain  statement  of  the  Constitntiou.  (See  Article 
VII.)  To  say  that  the  people  as  a  whole,  and  not 
the  people  of  each  State,  adopted  the  Constitution  is 
to  falsify  and  contradict  the  written  records  of  the 
conventions  of  the  States.  To  say  that  the  States 
surrendered  all  their  rights  and  gave  up  their  sov- 
ereignty to  the  federal  government,  is  to  contradict 
Article  X,  which  says:  "The  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it,  are  reserved  to  the  States  respectively, 
or  to  the  people."  It  is  evident  to  a  careful  student 
of  the  subject  that  the  confusion  has  grown  out  of 
using  the  words  "federal"  and  "national"  inter- 
changeably— using  the  words  as  if  they  meant  the 
same  thing,  when  by  the  action  of  the  convention  they 
are  plainly  defined  as  different,  and  their  usage  pre- 
scribed as  distinct.  Federal  means  a  government  by 
compact,  by  agreement,  by  treaty.  A  national  gov- 
ernment means  all  the  people  of  several  governments 
becoming  one,  and  that  government  supreme  and 
sovereign  over  all  included  in  it,  in  every  thing  and 
in  every  function  of  government.  Such  as  this  the 
government  of  the  United  States  never  was,  and 
never  could  be,  by  the  Constitution  which  gives  it  its 
existence.  The  States  are  national,  but  the  federal 
government  lives  and  has  its  being  by  the  voluntary 
delegated  authority  of  the  States. 


156  A  STUDY  IN 

An  eminent  French  scliolar  (M.  de  Tocqueville) 
in  his  work,  Democracy  in  America,  vol.  i,  ch.  18,  p. 
413,  says :  "The  union  was  formed  by  the  voluntary 
agreement  of  the  States ;  and  in  uniting  together  they 
have  not  forfeited  their  nationality,  nor  have  they 
been  reduced  to  the  condition  of  one  and  the  same 
people.  If  one  of  the  States  choose  to  withdraw  from 
the  compact,  it  would  be  difficulty  to  disprove  its 
right  of  doing  so,  and  the  federal  government  would 
have  no  means  of  maintaining  its  claim  directly 
either  by  force  or  right." 

There  is  no  record  of  any  State  anywhere  surren- 
dering all  its  sovereign  power  and  thereby  becoming 
absolutely  under  the  control  of  a  sovereign  authority. 
This  would  have  had  to  be  done  for  the  independent 
States  to  form  a  national  government.  There  is  a 
record  that  thirteen  independent  States  agreed,  each 
one  voluntarily  for  itself,  to  delegate  by  written  agree- 
ment certain  defined  powers  to  be  used  for  the  benefit 
of  all  the  States.  There  is  a  further  record  that 
some  of  these  States,  in  granting  these  powers,  espe- 
cially stipulated  when  these  "delegated  powers"  were 
used  to  the  detriment  or  injury  of  the  States  they 
were  to  be  withdrawn.  By  whom?  Evidently  by 
the  government  which  gave  these  powers.  This  very 
agreement  is  fatal  to  the  claim  of  nationalism.  If 
the  States  had  surrendered  all  sovereignty  uncondi- 
tionally, to  take  back  what  they  had  given  up  would 
have  been  revolution.  To  arm  themselves  and  by  vio- 
lence attempt  to  overthrow  the  government  thus  estab- 


STATE  EIGHTS  157 

lished  could,  and  would,  and  ought,  to  be  designated 
treason.  But  to  call  treason  and  revolution  when  one 
State,  or  several,  arm  themselves  to  resist  being  com- 
pelled to  do  what  the  bond  of  union  does  not  require 
of  them,  is  not  in  accordance  with  the  facts  in  the 
case.  The  Constitution  was  the  supreme  law  of  the 
union.  Apart  from  that  written  bond  there  was  no 
law  of  the  union,  and  the  government  of  the  union 
was  to  be  administered  according  the  specifications 
written  therein.  'Now  the  question  arises.  If  the 
Constitution  was  approved  by  the  States,  and  all  that 
was  to  be  done  in  administering  the  federal  govern- 
ment was  written  out,  how  could  there  be  any  dif- 
ference of  opinion  as  to  the  meaning  of  what  was 
\vritten  ?  What  was  the  meaning  of  there  being  two 
parties  in  th©  country  so  antagonistic  and  opposite? 
What  was  the  occasion  and  the  cause  of  two  parties  ? 
It  is  an  interesting  and  important  question  in  this 
study  ?    We  will  consider  it  in  the  next  chapter. 


A  STUDY  IK 


CHAPTER  V 

FEDERALS    VS.    EEPUBLICANS 

Mr.  Madison,  of  Virginia,  and  Mr.  Hamilton,  of 
ISTew  York,  by  their  writings  and  untiring  efforts, 
were  two  of  the  most  influential  factors  in  securing 
the  adoption  of  the  Constitution.  Both  of  these  gen- 
tlemen were  members  of  the  convention  which  drafted 
the  Constitution.  They  were  also  members  of  their 
respective  State  conventions,  and  were  potent  in  se- 
curing the  approval  and  adoption  of  the  document 
in  these  conventions.  They  worked  with  great  unan- 
imity to  effect  this  end,  but  very  soon,  a  few  years 
thereafter,  they  were  opposed  in  bitterest  antagonism, 
becoming  leaders  of  the  two  parties  known  as  Federal 
and  Republican. 

It  is  singular  how  names  have  become  perverted. 
We  would  with  correct  reasoning  conclude  that  the 
party  known  as  Federal  would  contend  that  the  prin- 
ciples of  a  federal  government  should  be  adminis- 
tered ;  but  the  fact  is  the  men  of  this  affiliation  pro- 
claimed and  practiced  that  ministration  of  govern- 
ment tending  to  centralize  the  powers  of  government 
in  what  they  called  the  ISTation.  Their  idea  was  that 
the  government  of  the  United  States  wajs  over  the 

158 


STATE  RIGHTS  159 

States.  The  Republican  party  contending,  on  the 
other  hand,  that  the  United  States  government  was 
between  the  States,  and  had  no  power  but  that  which 
was  delegated,  as  specified,  in  the  bond  of  union, — 
the  Constitution.  But  what  was  the  occasion  of  two 
parties  ?  Why  should  there  be  any  difference  of 
opinion  as  to  the  meaning  of  the  plain  statement  of 
the  Constitution,  which  seems  to  have  given  rise'  to 
the  two  parties  that  have  existed  in  this  country  ever 
since  the  first  administration  of  Washington  ?  These 
questions  force  themselves  upon  every  student  of  the 
history  of  the  United  States  Governemnt. 

A  careful  study  of  the  Constitution  will  convince 
any  candid  mind  that  there  cannot  be  any  doubt  as 
to  the  meaning  of  those  powers  delegated  to  the 
federal  government.  (Not  national,  for  the  framers 
of  the  government  eliminated  the  idea  of  nationality. ) 
They  are  all  specified,  and  the  States  by  specific  men- 
tion retain  all  their  sovereign  authority,  in  the  exer- 
cise of  which,  if  the  delegated  powers  are  used  to 
the  injustice  of  any  State,  these  powers  by  that  State, 
or  any  States,  or  all  States,  can  be  recalled.  What 
are  known  as  political  differences  in  this  country 
originated  in  General  Washington's  cabinet  through 
the  jealousies,  animosities,  and  personal  hatred  of 
Alexander  Hamilton  and  Thomas  Jefferson.  Hamil- 
ton went  in  the  convention  of  1787  with  his  mind  fixed 
upon  strong  national  government  for  the  States.  He 
never  abandoned  that  idea,  though  in  his  advocacy 
of  the  adoption  of  the  Constitution  he  labored  with 


160  A  STUDY  IN 

Madison.  Madison  in  all  his  efforts  worked  hard  to 
establish  the  federal  government,  as  defined  in  the 
Constitution.  Hamilton  aligned  himseK  with  Madi- 
son, and  adroitly  used  the  word  "federal"  to  impose 
his  idea  of  a  centralized  government  over  the  States. 
When  his  policy  showed  unmistakably  this  fact,  he  and 
Mr.  Madison  ceased  to  co-operate,  and  Mr.  Madison 
stood  with  Mr.  Jefferson  and  those  who  contended 
for  a  strict  construction  of  the  Constitution. 

The  policy  of  Mr.  Hamilton  as  Secretary  of  the 
Treasury  in  the  cabinet  of  General  Washington  was 
the  occasion  of  there  being  two  parties.  Mr.  Jeffer- 
son opposed  his  policy  in  the  spirit  of  bitterness 
which  infected  those  who  agreed  with  him,  and  some- 
times impelled  them  to  acts  more  out  of  hatred  to 
Hamilton  than  out  of  love  and  loyalty  to  the  princi- 
ples of  the  Constitution.  It  is  a  fact  that  Hamilton 
with  great  zeal  labored  for  the  adoption  of  the  Con- 
stitution. It  is  also  a  fact  that  after  its  adoption  he 
spoke  lightly  of  it,  calling,  in  a  letter  to  Gouverneur 
Morris,  "a  frail  and  worthless  fabric"  which  he  "was 
laboring  to  prop." 

It  seems  to  me  that  Hamilton  organized  the  Federal 
Party  to  effect  a  strong  centralized  government,  not 
to  carry  out  the  provisions  of  the  Constitution.  The 
idea  that  filled  his  mind  when  he  went  into  the  con- 
vention, viz.,  that  there  must  be  a  strong  national 
government  for  the  States,  declared  itself  in  his  of- 
ficial acts  and  dominated  his  policy  in  directing  the 
course  of  the  Federal  Party.     To  say  he  thought  he 


STATE  EIGHTS  161 

was  right,  is  no  excuse  or  no  explanation  of  his  policy. 
What  he  did  in  administering  the  department  of 
government  committed  to  his  care  he  did  out  of 
hatred  to  Jefferson  in  too  many  instances,  and  with 
the  purpose  of  organizing  a  party  whose  principles 
were  the  ideas  which  he  had  always  insisted  upon. 
He  was  unquestionably  a  great  man.  As  an  organ- 
izer he  had  no  equal  in  his  day,  as  has  been  shown 
in  his  administrative  ability.  He  was  a  man  of 
attractive  personality,  as  was  seen  in  the  manner 
which  his  followers  adopted  his  policies.  He  had 
little  regard  for  the  sincerity  of  mankind  at  large, 
as  manifested  in  his  opinion  of  men  in  his  political 
writings.  For  example,  read  carefully  this  ex- 
cerpt from  Hamilton  s  Works,  vol.  vi,  p.  541 :  "Noth- 
ing is  more  fallacious  than  to  expect  to  produce  any 
valuable  or  permanent  results  in  political  projects  by 
relying  on  the  reason  of  men.  Men  are  rather  reason- 
ing than  reasonable  animals,  for  the  most  part  gov- 
erned by  the  impulse  of  passion.  This  is  a  truth 
well  understood  by  our  adversaries,  who  have  prac- 
ticed upon  it  with  no  small  benefit  to  their  cause ;  for 
at  the  very  moment  they  were  eulogizing  the  reason 
of  men  and  professing  to  appeal  to  that  faculty,  they 
are  courting  the  strongest  and  most  active  passion  in 
the  human  heart,  vanity.  It  is  no  less  true  that  the 
Federalists  seem  not  to  have  attended  to  the  fact  suf- 
ficiently ;  and  that  they  erred  in  relying  so  much  on 
the  rectitude  and  utility  of  their  measures,  as  to  have 
neglected  the  cultivation  of  the  popular  favor  by 


162  A  STUDY  IN 

fair  and  justifiable  expedients.  Unluckily,  however, 
for  us  in  the  competition  for  the  passions  of  the 
people,  our  opponents  have  great  advantages  over  us, 
for  the  reason  that  the  vicious  are  far  more  active 
than  the  good  passions,  and  that  to  win  the  latter 
to  our  side  we  must  renounce  our  principles,  and  our 
objects,  and  unite  in  corrupting  public  opinion  till 
it  becomes  fit  for  nothing  but  mischief.  Yet  unless 
we  can  contrive  to  take  hold  of  and  carry  along  with 
us  some  strong  feeling  of  the  mind,  we  shall  in  vain 
calculate  upon  any  substantial  or  durable  results. 
Whatever  plan  we  may  adopt  to  be  successful  must 
be  founded  on  the  truth  of  this  proposition.  And 
perhaps  it  is  not  easy  for  us  to  give  it  full  effect,  espe- 
cially not  without  some  deviations  from  what  on 
other  occasions  we  have  maintained  to  be  right.  But 
in  determining  upon  the  propriety  of  the  deviations, 
we  must  consider  whether  it  be  possible  to  succeed 
without  in  some  degree  applying  the  weapons  which 
have  been  employed  against  us,  and  whether  the 
actual  state  and  future  prospect  of  things  be  not  such 
as  to  justify  the  reciprocal  use  of  them.  I  need  not 
tell  you  that  I  do  not  mean  to  countenance  things 
intrinsically  unworthy,  but  only  such  as  may  be  de- 
nominated irregular,  such  as  in  a  sound  and  stable 
order  of  things  ought  not  to  exist." 

A  careful  study  of  this  long  quotation  reveals,  as 
no  language  can,  the  character  of  Alexander  Hamil- 
ton. It  is  clever,  as  the  English  say,  but  what  can 
be  said  of  the  morals  of  it?     This  paragraph  will 


STATE  EIGHTS  163 

help  tO'  explain  why  Hamilton  took  an  oath  to  up- 
hold and  protect  the  Constitution,  and  then  wrote  it 
down  "a  frail  and  worthless  fabric."  The  man  who 
is  capable  of  writing  that  as  his  political  philosophy, 
is  incapable  of  keeping  his  obligations  given  under 
oath.  If  the  Constitution  is  a  "frail  and  worthless 
fabric,"  of  course  Hamilton  need  not  be  expected  to 
be  zealous  for  upholding  it;  and  while  the  language 
may  be  regarded  as  the  criticism  of  a  scholar,  it  can- 
not fail  to  be  construed  as  a  declaration  that  it  is  his 
purpose  to  ignore  it  in  his  policy. 

Mr.  Madison  and  Mr.  Jefferson  insisted  upon  a 
strict  construction  of  the  Constitution ;  Mr.  Hamilton 
by  his  candid  declaration,  if  you  please,  said  he 
ignored  it,  and  gave  as  his  reason  its  weakness  and 
wortJilessness.  By  his  industry  and  personal  influ- 
ence Hamilton  rallied  around  him  men  who,  infused 
with  the  same  spirit,  waged  war  with  relentless  fury 
upon  the  party  which  contended  for  the  federal  nature 
of  the  government  of  the  union.  They  (Mr.  Hamil- 
ton's party,  known  as  the  Federal  Party)  contended 
for  a  union,  ignoring  the  Constitution  in  its  meaning 
as  the  bond  of  true  union.  It  was  evidently  his  pur- 
pose to  form  a  nation,  though  he  well  knew  that  pur- 
pose was  repudiated  by  the  convention  that  framed 
the  Constitution.  He  acted  and  taught  that  the 
federal  government  was  over  the  States,  when  he 
knew,  better  than  any  man  of  his  day,  that  the  docu- 
ment which  gave  the  federal  government  existence 
made  it  plain  that  it  was  a  government  between  the 


164  A  STUDY  IN 

States.  The  meaning  given  by  usage  and  general  ac- 
ceptance to  these  two  words — over  and  between — 
settles  beyond  any  possible  controversy  the  nature  of 
the  government  of  the  United  States.  There  is  no 
national  government  at  all  by  right,  though  there  may 
be  one  by  force.  No  such  government  can  find  exist- 
ence in  the  Constitution  of  the  United  States.  Here 
was  the  origin  of  the  two  parties  in  Politics. 

Mr.  Hamilton  by  his  example  and  political  instruc- 
/tions  opened  in  the  history  of  our  country  the 
fountain  of  that  vile  stream  Imown  as  politics, 
whose  murky  waters  still  flow  with  increasing  volume 
and  depth ;  whose  baleful  effects  are  felt  in  our  day, 
Or,  changing  the  figure,  he  by  his  example  and  teach- 
ing summons  from  the  realm  of  darkness  that  evil 
spirit  who  has  corrupted  public  opinion  until  it  has 
become  fit  for  nothing  but  mischief;  and  too  many, 
alas !  like  him,  have  also  sworn  to  uphold  and  protect 
the  Constitution  and  have  not  hesitated  for  partisan 
reasons  to  violate  that  oath. 

Under  the  influence  of  that  evil  spirit  Mr.  W.  H. 
Seward  did  not  hesitate  tO'  violate  his  sworn  obliga- 
tion and  declare  he  was  influenced  by  a  'Tiigher  law." 
The  oath  is  the  end  of  controversy.  If  Mr.  Seward 
had  any  controversy  with  the  Constitution,  he  ought 
not  to  have  taken  an  oath  to  uphold  it  and  protect 
it.  If  he  did  take  oath  so  to  do,  there  is  plainly 
demanded  a  reason  why  he  should  not  fulfill  his 
sworn  obligation.  If  he  did  things  which  that  bond 
(viz.,  the  Constitution)   says  he  should  not  do,  to 


STATE  EIGHTS  165 

explain  his  action  by  pleading  a  "higher  law"  is  noth- 
ing less  than  an  acknowledgment  that  he  did  not  re- 
gard his  isworn  obligation,  and  history  proves  that 
he  did  not  so  regard  his  oath.  ^ 

Mr.  Hamilton  originated  the  policy  of  what  was  | 
known  as  the  Tederalist  Party,  and  that  policy  was  * 
to  establish  the  federal  government  as  a  government 
over  the  States,  and  to  make  it  superior  to  the  gov 
ernment  of  the  States,  and  compel  all  the  States  to 
submit  to  it  as  supreme. 

Mr.  Jefferson  and  Mr.  Madison  organized  what^^ 
was  known  as  the  Republican  or  Democratic  Party, 
and  contended  that  the  federal  government  was  a  / 
government  between  the  States,  and  that  the  States  ' 
could  be  required  only  to  do  what  was  stipulated  in 
the  Constitution.    The  federal  government,  they  con- 
tended, had  no  power  save  that  which  was  delegated 
in  the  written  bond  of  union ;  and  these  delegated 
powers    were    specified    so  clearly   that   those   who.' 
wanted  to  know  could  easily  obtain  the  required  in- 
formation. 

But  the  question  still  presents  itself,  was  there 
nothing  else  at  issue  other  than  the  personal  enmities 
and  jealousies  of  these  two  great  men  ?     There  was 
another  reason,  in  the  fact  that  Mr.  Hamilton  rested 
the  constitutionality  of  his  policy  on  what  has  been  . 
called  the  "General  welfare  clause"  of  the  Ctostitu- 1  \( 
tion.    In  our  day  it  is  known  as  the  "Elastic  clause." ' 
(See  John  Eiske,  Civil  Government  of  the  United 
States,  p.  245.)     This  clause  is  in  Article  I,  section 


^ 


166  A  STUDY  IN 

8,  paragraj)h  18.  Congress  is  empowered  "To  make 
all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  depart- 
ment or  office  thereof."  Mr.  Hamilton  and  his  party 
interpreted  this  paragraph  to  mean  that  whatever 
Congress  deemed  necessary  and  proper  for  the  United 
States  and  the  federal  government  could  by  congres- 
sional act  become  law.  The  Federalist  interpretation 
of  this  clause  of  the  Constitution  was  consolidation 
and  centralization.  Against  this  dogma  Mr.  Madi- 
son and  Mr.  Jefferson  raised  furious  and  incessant 
fight,  since  to  accept  such  as  the  meaning  of  that 
clause  of  the  Constitution  turned  the  government 
over  to  the  majority  party  in  Congress,  and  utterly 
ignored  any  rights  of  the  minority.  In  other  words, 
the  party  that  can  outvote  the  other  party  or  parties 
is  the  government,  when  the  very  teaching  of  the 
Constitution  is  that  the  party  which  is  in  the  majority 
must  administer  the  government  according  to  the 
principles  in  the  bond  of  union.  "The  Federal  Gov- 
ernment being  derivative,  and  having  only  limited 
powers,  must  confine  itself,  of  course,  to  those  powers ; 
and  the  legislatoa-,  like  any  other  depository  of  power, 
if  there  be  a  well-founded  doubt  whether  he  has  the 
particular  power  he  is  asked  to  exercise,  is  bound  in 
honesty  not  to  exercise  it."  (Jo.  Baldwin  in  Party 
Leaders,  p.  81.) 

There  should  be  no  antagonism  between  the  federal 


STATE  EIGHTS  167 

government  and  State  government.  The  spirit  of  the 
Constitution  was  to  make  them  co-operative.  A 
strong  federal  government  is  not  necessarily  a  tyran- 
nical government;  but  strong  for  federal  purposes. 
What  are  these  purposes  ?  They  are  clearly  set  forth 
in  the  written  covenant  or  compact  of  the  States.  It 
only  becomes  a  tyrannical  government  when  it  uses 
the  delegated  powers  to  perpetuate  itself  over  or 
against  the  rights  of  the  State  governments.  Its  exist- 
ence is  in  the  limits  prescribed  by  the  written  Con- 
stitution ;  outside  of  that  it  has  no  existence.  Now 
it  was  the  animosities  of  the  policies  inaugurated  by 
the  cabinet  of  Mr.  Washington  which  originated  poli- 
tics in  this  country,  and  those  animosities  in  bitter- 
ness and  selfishness  have  become  so'  much  the  exist- 
ence of  men  since  that  day  that  the  strife  is  kept  up 
more  for  personal  ends  than  for  righteous  purposes. 
At  least  this  seems  to  be  the  case  as  we  study  the  con- 
troversies from  the  year  1789  down  to  the  present 
day.  Mr.  Hamilton  was  right  in  that  he  loved  his 
country  and  showed  his  patriotism  in  the  things  he 
suffered.  But  the  study  of  his  application  of  his 
principles  will  show  that  he  was  wrong  to  build  a 
government  on  the  Constitution  he  had  sworn  to  up- 
hold, when  in  the  building  of  that  government  he 
violated  the  directions  of  that  instrument  called  th© 
Constitution.  He  knew  that  a  federal  government 
was  not  a  national  government.  He  knew  that  the 
framers  of  the  Constitution  designated  the  govern- 
ment "federal" ;  yet,   using  the  word  "federal"   as 


168  A  STUDY  IIT 

[equivalent  to  "national,"  he  adroitly  in  his  policy 
so  deceived  his  followers  that  the  national  idea  came 
to  live  in  the  word  "federal."  Mr.  Jefferson  at  this 
point  opposed  him,  and  insisted  upon  a  strict  con- 
struction of  the  Constitution.  In  this  Mr.  Jefferson 
was  right.  We  do  not  mean  to  say  that  Mr.  Jefferson 
was  always  right ;  but  in  this  the  earnest  student  of  the 
controversy  must  agree  with  Mr.  Jefferson,  for  if  the 
Constitution  was  not  the  limit  of  the  power  of  the 
federal  government,  why  were  the  officers  of  that 
government  sworn  to  uphold  and  protect  it?  They 
were  not  sworn  to  maintain  the  Union,  or  the  govem- 
■ment  of  the  Union,  hut  were  put  under  sworn  obliga- 
tions to  uphold  and  protect  the  Constitution. 

It  was  not  the  purpose  of  the  Federal  Party  to 
administer  the  federal  government  according  to  the 
Constitution,  but,  as  Senator  Cabot  Lodge,  of  Massa- 
chusetts, says  in  his  life  of  George  Cabot,  "The  first 
and  paramount  object  of  the  Federalists  was  to  build 
up  a  nation  and  to  create  a  national  sentiment.  For 
this  they  sought  a  more  perfect  union.  Their  next 
object  was  to  give  the  nation  they  had  called  into 
existence  not  only  a  government,  but  a  strong  gov- 
ernment." (Life  and  Letters  of  George  Cabot,  p. 
414.) 

This  is  in  substance  just  what  Mr.  Jefferson 
and  his  followers  accused  Mr.  Hamilton  and  his  as- 
sociates of  doing,  and  because  of  these  accusations 
they  have  been  written  down  as  those  who  opposed 
the  government,  when  it  was  not  the  government  but 


STATE  EIGHTS  169 

ihai  'policy  of  government  advocated  by  the  Federal- 
ist Party  tliat  they  antagonized. 

It  has  always  been  a  strange  thing  in  the  history 
of  this  country  that  the  party  which  wished  to  make 
a  nation  of  the  United  States  did  not  take  the  name  of 
"National  Party,"  They  would  have  done  so  no  doubt 
but  they  knew  it  would  have  destroyed  their  influence 
with  the  people  at  the  very  outset,  for  it  became  known 
that  the  idea  of  "a  nation"  being  formed  from  these 
States  was  repudiated  by  the  convention  which  for- 
mulated the  Constitution.  The  Federal  Party  per- 
sisted in  their  endeavors  to  accomplish  their  national 
policy  until,  under  the  leadership  of  Mr.  Jefferson 
and  Mr.  Madison,  they  were  put  out  of  power  and 
then  they  seriously  considered  dissolving  the  Union. 


A  STUDY  m 


CHAPTER  VI 

THE   HARTFOKD    CONVENTION 

The  history  of  the  different  movements  to  dissolve 
the  union  of  the  United  States  is  a  part  of  the  history 
of  this  country  that  should  he  written  clearly  and 
distinctly  for  information  and  so  put  in  the  record 
of  the  events  of  this  country  that  it  may  be  properly 
understood.  The  idea  of  the  dissolution  of  the  Union 
did  not  originate  in  the  South,  nor  did  it  come  from 
any  dogma  or  teaching  of  the  Democratic  Party.  It 
originated  with  the  party  of  Mr.  Hamilton.  We  do 
not  mean  to  say  that  the  Federal  Party  was  unani- 
mous in  originating  the  movement  of  secession,  but 
a  large  and  influential  element  of  that  party  in  the 
New  England  States  persistently  urged  it,  and  seri- 
ously considered  it.  When  Louisiana  was  admitted 
into  the  Union  in  1811,  Josiah  Quincy,  of  Massa- 
chusetts, in  a  speech  in  Congress,  said:  "If  this 
bill  passes,  it  is  my  deliberate  opinion  that  it  is 
virtually  a  dissolution  of  the  Union ;  that  it  will  free 
the  States  from  their  moral  obligation;  and  as  it 
will  be  the  right  of  all,  so  it  will  be  the  duty  of 
some,  definitely  to  prepare  for  a  separation  amicably, 
if  they  can;  violently  if  they  must."     This  expres- 

170 


STATE  EIGHTS  lYl 

sion  has  been  regarded  by  all  as  a  revelation  of  the 
animus  of  the  I^ew  England  wing  of  the  Federal 
Party.  All  the  evidence  goes  to  show  that  the  Fed- 
eralist Party  considered  that  the  States  had  a  right  to 
withdraw  from  the  union,  but  there  were  many  in  the 
party  who  did  not  think  it  expedient  to  do  so.  It  is 
a  singular  thing  in  the  study  of  the  events  of  this 
period,  that  the  party  which  is  now  so  loud  in  sound- 
ing its  own  praise  in  what  it  has  done  to  form  the 
Union,  pleaded  its  right — or  at  least  so  did  one  wing 
of  it — tO'  withdraw  from  the  Union  because  it  could 
not  at  its  pleasure  pursue  a  policy  which  the  people 
of  the  majority  of  the  States  had  by  their  votes  pro- 
nounced unconstitutional. 

The  War  of  1812  had  its  origin  in  great  measure 
from  the  wrongs  suffered  by  the  commerce  of  IvTew 
England.  Yet  the  people  of  that  section  not  only 
entered  upon  the  war  coldly,  but  before  its  conclu- 
sion manifested  a  strong  and  violent  opposition  to 
prosecuting  it  at  all.  Professor  A.  B.  Hart,  of  Har- 
vard University,  in  his  work  on  Formation  of  the 
Union,  p.  207,  says:  "We  now  know  that  some  of 
the  leading  Federalists  were,  up  to  the  outbreak  of 
the  war  [1812],  in  confidential  communication  with 
British  envoys."  In  the  darkest  hour  of  the  trial 
of  the  United  States  Government  in  this  war,  this 
spirit  of  opposition  found  expression  in  what  is 
known  as  the  Hartford  Convention.  This  convention 
was  called  by  an  act  of  the  legislature  of  Massachu- 
setts.    When  we  seek  to  learn  for  what  purpose  this 


172  A  STUDY  IJST 

convention  was  called,  its  objects  are  shown  by  the 
history  of  the  case — that  the  people  of  ]^ew  England 
might  look  after  their  own  interests  and  provide 
for  their  own  defense  and  welfare.  It  was  not  a 
convention  of  the  Federal  Party  of  all  the  States, 
but  only  of  those  of  New  England. 

The  federal  government  was  waging  war  against 
Great  Britain  largely  because  the  commercial  inter- 
est of  l^ew  England  had  been  injured  by  acts  of  the 
British  Government.  To  carry  on  this  war,  and  to 
bring  it  to  a  triumphant  issue,  the  administrators  of 
the  federal  government  pursued  the  policy  of  the 
embargo,  which  temporarily  impoverished,  and  cur- 
tailed the  business  of  the  I^ew  England  States.  The 
federal  administration  was  doing  all  in  its  power  to 
fulfil  the  purpose  of  its  existence,  viz.,  to  stand  as 
a  unit  against  foreign  encroachment  upon  any  of  the 
States. 

IS^ow,  in  the  darkest  hour  of  the  war,  brought 
on  in  a  large  measure  at  the  instance  of  herself, 
New  England  called  a  convention,  not  to  urge  her 
people  to  greater  zeal  in  bringing  the  war  to  a 
triumphant  end,  but  to  devise  some  way  of  saving 
herself.  And  it  looks  very  much  as  if  in  order  to 
do  this  they  were  getting  ready  to  run.  In  response 
to  the  call  of  the  legislature  of  Massachusetts,  this 
convention  met  in  the  city  of  Hartford  December 
15,  1814.  Massachusetts  was  represented  by  twelve 
delegates,  Ehode  Island  by  four,  Connecticut  by 
seven,  and  later  on  two  from  ISTew  Hampshire  and 


STATE  RIGHTS  173 

one  from  Vermont  attended,  the  last  three  repre- 
senting local  conventions  from  their  States. 

The  sessions  of  the  convention  were  held  behind 
closed  doors,  and  it  was  written  in  their  records  that 
they  took  such  action  as  this:  "Events  may  prove 
that  the  causes  of  our  calamities  are  deep  and  perma- 
nent; they  may  be  found  to  proceed  not  merely 
from  blindness  of  prejudice,  pride  of  opinion,  vio- 
lence of  party  spirit,  or  the  confusion  of  the  times, 
but  they  may  be  traced  to  implacable  combinations 
of  individuals  or  of  States,  to  monopolize  power  and 
ofSce,  and  to  trample  without  remorse  upon  the  rights 
and  interests  of  the  commercial  sections  of  the  Union. 
Whenever  it  shall  appear  that  these  causes  are  radical 
and  permanent,  a  separation  by  equitable  arrange- 
ment will  be  prefcTable  to  an  alliance  by  constraint 
among  nominal  friends,  but  real  enemies  inflamed  by 
mutual  hatred  and  jealousies,  and  inviting  by  intes- 
tine divisions  contempt  and  aggressions  from  abroad." 
{Journal  Hartford  Convention,  p.  5.)  Further  says 
the  Journal,  on  page  Y :  "It  is  as  much  the  duty  of 
the  State  to  watch  over  the  rights  reserved,  as  of  the 
United  States  to  exercise  the  powers  which  are  dele- 
gated." It  continues,  on  pages  10-11:  "That  acts 
of  Congress  in  violation  of  the  Constitution  are  ab- 
solutely void  is  an  undeniable  proposition.  It  does 
not,  however,  consist  with  the  respect  from  a  con- 
federate State  towards  the  General  Government  to  fly 
to  open  resistance  upon  every  infraction  of  the  Con- 
stitution.   The  mode  and  the  energy  of  the  opposition 


174  A  STUDY  IE" 

should  always  conform  to  the  nature  of  the  violation, 
the  intention  of  the  authors,  the  extent  of  the  evil 
inflicted,  the  determination  manifested  to  persist 
in  it,  and  the  danger  of  delay.  But  in  cases  of 
deliberate,  dangerous,  and  palpable  infractions  of 
the  Constitution  affecting  the  sovereignty  of  the 
State  and  liberties  of  the  people,  it  is  not  only  the 
right,  but  the  duty,  of  such  State  to  interpose  its 
authority  for  their  protection,  in  the  manner  best 
calculated  to  secure  that  end.  When  emergencies 
occur,  which  are  either  beyond  the  reach  of  judical 
tribunals,  or  too  pressing  to  admit  of  delay  incident 
to  their  forms,  States  which  have  no  common  umpire 
must  be  their  own  judges,  and  execute  their  own  de- 
cisions." 

Mr.  Jefferson  himself  could  not  have  written  a 
clearer  statement  of  the  position,  condition,  and  rela- 
tion of  the  States  in  the  federal  union.  This  state- 
ment of  States  rights  does  not  comport  with  the 
policy  of  the  Federal  Party  previous  to  this  date, 
and  it  is  strange  the  men  who  were  struggling  and 
scheming  up  to  this  period  to  make  the  federal  gov- 
ernment one  over  the  States,  should  now  assert  that 
the  nature  of  this  government  to  be  that  for  which  the 
Republican  or  Democratic  Party  had  all  the  time  con- 
tended. 

It  is  a  disappointment  to  the  student  of  history  not 
to  find  that  tiese  patriotic  (  !)  citizens  of  ISTew  Eng- 
land were  engaged  in  discussing  ways  and  means 
to  help  the  federal  government  in  the  great  struggle 


STATE  RIGHTS  175 

in  which  it  was  engaged  to  right  the  wrongs  of 
which  they  most  complained.  It  is  true  the  policy 
pursued  by  those  who  were  administering  the  general 
government  pressed  hard  upon  the  'New  England  sec- 
tion for  a  time ;  it  is  true  this  policy  was  giving 
much  to  France ;  but  it  was  for  the  purpose  of  punish- 
ing England,  and  ultimately  delivering  the  section 
oppressed  by  the  overbearing  activities  of  the  British 
Government.  It  is  disappointing,  we  say,  to  find 
that  these  States  of  the  Union,  because  they  were  un- 
willing to  suffer  a  loss  for  a  while,  asserting  that  to 
be  true  which  they  had  heretofore  denied,  refusing  to 
give  aid  when  the  other  confederated  States  were 
fighting  hard  to  carry  out  their  part  of  the  federal 
compact. 

The  Hartford  Convention  is  an  ugly  blot  upon 
the  patriotism  of  that  section  of  the  United  States, 
a  stain  which  can  never  be  erased.  The  convention 
originated  in  a  spirit  of  selfishness,  its  acts  showed  a 
spirit  of  opposition  to  the  general  government  that 
some  have  said  was  treasonable  because  it  gave  en- 
couragement and  aid  to  the  enemies  of  the  United 
States ;  but  it  may  be  asked  how  could  that  be  ?  ISTo 
one  denied  that  any  one  of  the  States,  or  all  of 
them,  had  a  right  to  withdraw  from  the  Union.  But 
their  conduct  was  odious  in  their  assertion  of  this 
right,  because  it  was  forsaking  those  who  were  wag- 
ing war  largely  on  their  complaint,  and  aiding  the  •■ 
enemy  in  refusing  to  give  help  for  the  common  de- 
fense.    It  was  the  circumstances  under  which  the 


176  A  STUDY  IN 

assertion  was  made,  and  not  the  fact  that  they  had 
the  right  to  withdraw,  that  makes  the  thing  so  ugly 
and  disappointing. 

No  objection  was  made  to  the  secession  of  the 
States  represented  in  the  Hartford  Convention  on 
part  of  Congress.  Mr.  Madison,  the  President,  sent 
no  message  to  Congress  about  it.  The  convention 
sent  a  committee  to  lay  their  grievances  before  Con- 
gress. They  never  did  so,  because  they  found  out 
after  their  arrival  in  Washington  that  a  treaty  of 
peace  had  been  made  between  Great  Britain  and  the 
United  States.  The  contemplated  meeting  of  the 
convention  in  Boston  was  never  effected,  because  upon 
the  cessation  of  hostilities  they  dropped  the  matter 
and  determined  to  remain  as  they  were  and  await 
developments. 

Mr.  Webster  says  because  the  laws  of  which  Massa- 
chusetts complained  were  pronounced  unconstitu- 
tional by  the  Supreme  Court,  she  yielded.  The  com- 
missioners sent  by  the  convention  reported  that  they 
declined  to  appear  before  Congress  "because  they 
found  on  their  arrival  at  Washington  that  peace  had 
been  concluded."  (^Journal  Hartford  Convention, 
p.  33.)  Thus  we  see  that  in  the  judgment  of  both 
political  parties  the  States  were  regarded  as  sovereign, 
and  as  such  had  rights  which  in  their  judgment  they 
could  use  or  not  use  as  they  saw  proper. 

It  was  not  the  dogma  of  any  political  party,  but 
a  thing  admitted  by  all,  as  the  right  of  any  or  all  the 
States  to  retire  from  the  compact.    Mr.  Justice  Story 


STATE  RIGHTS  177 

admits  that  if  the  federal  govemmjent  is  a  compact, 
this  right  must  be  conceded;  and  to  oppose  it  he 
denies  the  facts  of  history,  and  on  this  denial  of 
facts  bases  his  argument.  Massachusetts  again  in 
1844  asserts  this  right  of  secession,  when  opposing 
the  annexation  of  Texas.  Her  legislature  resolved, 
"That  the  project  of  the  annexation  of  Texas,  unless 
asserted  on  the  threshold,  may  drive  these  States  into 
a  dissolution  of  the  Union." 

The  same  body  on  February  22,  1845,  adopted  a 
series  of  resolutions,  in  one  of  which  these  words 
occur:  "And  as  the  powers  of  legislature  granted 
in  the  Constitution  of  the  United  States  to  Congress 
do  not  embrace  the  case  of  the  admission  of  a  foreign 
State,  or  foreign  territory  by  legislation  into  the 
Union,  such  an  act  of  admission  would  have  no  bind- 
ing force  whatever  on  the  people  of  Massachusetts." 
(Lunt's  History  of  the  Origin  of  the  War,  pp.  467- 
468.)  What  stronger  declaration  of  States'  rights 
could  be  given  ?  If  the  States  could  make  the  Union, 
the  States  could  unmake  the  Union,  unless  there  was 
something  in  the  act  of  the  making  of  the  Union 
that  stopped  them  in  the  unmaking.  How  did  they 
make  it  ?  In  the  exercise  of  their  sovereign  authority. 
The  nature  of  the  government  they  made  in  the  exer- 
cise of  this  sovereign  power  they  expressly  declare  is 
a  government  of  delegated  power.  Delegated  power 
implies  the  existence  of  that  delegating  the  power. 
A  sovereign  may  delegate  sovereign  power,  but  may 
never  delegate  sovereignty,  and  the  fact  that  the  dele- 


178  A  STUDY  IN 

gated  powers  are  specified  shows  that  all  powers  of 
sovereignty  not  specified  in  the  act  of  delegation  are 
retained.-  If  these  powers  are  delegated,  it  must  be 
admitted  that  they  can  be  withdrawn,  and  unless  iu 
\l''\  the  act  of  giving  these  powers  it  is  especially  stipu- 
lated they  shall  never  be  recalled  no  one  can  truth- 
;  fully  say  they  can  never  be  recalled. 

.    In  one  instance,  at  least,  in  the  case  of  Virginia, 
I  that  State  acceded  to  the  adoption  of  the  Constitu- 
1/     tion  with  the  clear  understanding  that  if  the  powers 
\  granted  were  ever  used  to  her  injury  she  could  and 
'would   recall  them.      With   this   understanding  she 
took   her   place   among  the   other   adopting   States. 
Article  X  of  the  Constitution  makes  it  plain  what 
Virginia  claimed  for  herseK  the  bond  of  union  con- 
ceded to  all  the  States,  viz.,  the  rights  to  exercise 
sovereign  authority  in  all  things  not  given  to  the 
federal  government.      Now,   if  the  federal  govern- 
I'ment  is  administered  in  a  way  injurious  to  any  one 
State,  Virginia  at  least, — if  she  is  the  one  injured, — 
i  has  the  right  to  secede  from  that  government,  for 
I  so  she  stipulated  when  she  agreed  to  enter  the  federal 
^s^ompact.      Massachusetts,    New   York,    and   all  the 
other  States  may  combine  to  compel  her  to  remain  in 
the  union,   and  may  succeed  in  their  undertaking, 
but  they  have  no  right  under  the  covenant,  the  federal 
law,  to  do  so,    A  thing  can  never  be  made  right  when 
it  antagonizes,  is  contrary,  to  the  agreement  made  by 
the  covenanting  parties.     If  Virginia  can  show  that 
the  administration  of  the  federal  government  is  in 


STATE  RIGHTS  179 

any  way  injurious  to  her,  she,  by  reason  of  the  condi- 
tion on  which  she  agreed  to  become  a  party  to  that  I 
government,  can  cease  to  remain  in  that  government^ 
Massachusetts  had  the  same  right.  To  compel  any 
one  of  the  States  to  remain  in  the  union  is  coercion. 
If  all  the  States  had  the  right  to  abolish  the  Articles 
of  Confederation, — which  they  declared  should  be 
perpetual, — and  enact,  in  their  sovereignty,  another 
and  different  bond  of  union, — ^which  they  do  not 
declare  to  be  perpetual, — why  should  not  all  or  even 
some  of  the  States  withdraw  from  the  union  formed 
by  the  second  bond,  when  that  bond  becomes  oppres- 
sive or  injurious  ?  By  what  rightful  authority  could 
Virginia,  South  Carolina,  an(i  !N'ew  York  say  to 
Massachusetts,  you  shall  not  secede  from  that  to 
which  you  acceded?  Could  they  rightfully  say  to 
Rhode  Island  and  ISTorth  Carolina,  you  shall  adopt 
this  Constitution?  Could  these  or  all  the  other 
States  demand  rightfully  of  Massachusetts  anything 
not  stipulated  in  the  agreement  of  the  union  ?  Cer- 
tainly not.  "Now  to  remain  in  the  union  and  to 
refuse  to  do  the  things  that  the  government  of  the 
union  demanded  was  not  right.  South  Carolina  de- 
clared in  1832  she  would  do  this;  but  she  did  not  do 
60,  though  not  for  the  reason  she  feared  the  military 
power  of  the  federal  srovernment  under  the  threat  of 
President  Andrew  Jackson.  We  read  in  the  histories 
that  South  Carolina  "backed  down"  from  her  posi- 
tion, that  "Old  Hickory"  was  not  one  to  be  tampered 
with,  and  because  of  his  proclamation  the  hot-headed 


180  A  STUDY  IIT 

South  Carolinians  yielded.  This  is  not  only  inac- 
curate, but  absolutely  untrue.  Every  one  who  has 
carefully  read  about  the  affair  knows  that  South 
Carolina  did  not  back  down,  but  gained  her  point. 
On  motion  of  IMr.  Clay  a  bill  was  introduced  lower- 
ing the  tariff  to  the  basis  of  revenue,  and  not  for  pro- 
tection. That  was  the  point  of  contention,  and  in- 
stead of  South  Carolina  giving  away  in  fear,  her 
stand  brought  the  leaders  in  Congress  to  return  to  the 
plain  meaning  of  the  Constitution. 

Massachusetts  had  said  in  the  Hartford  Conven- 
tion "that  acts  of  Congress  in  violation  of  the  Con- 
stitution are  absolutely  void  is  an  undeniable  posi- 
tion." This  can  mean  nothing  but  that  Congress  haa 
no  authority  save  that  prescribed  in  the  Constitu- 
tion; and  when  Congress  enacts  laws  transcending 
the  authority  delegated  in  the  agreement  that  made 
Congress,  the  States  are  not  bound  to  respect  those 
laws.  This  is  nothing  but  nullification.  Yet  when 
South  Carolina  undertakes  to  do  what  Massachusetts 
and  other  !N'ew  England  States  in  convention  assem- 
bled say  they  have  a  right  to  do,  by  what  process 
of  reasoning,  by  what  stipulation  in  the  bond  of 
union,  does  the  conduct  of  South  Carolina  become 
treasonable?  How  can  it  be  termed  rebellious?  If 
the  federal  government  was  a  government  over  the 
States,  and  had  authority  as  such  to  compel  the 
States  to  do  as  it  (the  federal  government)  insisted, 
then  there  might  be  some  show  of  reason  in  stigma- 
tizing such  conduct  as  that  South  Carolina  threatened 


STATE  EIGHTS  181 

as  treason.  But  tlie  fact  is  the  federal  govermnent 
is  not  over  the  States,  but  between  the  States;  and 
when  in  discharge  of  the  function  of  governing  be- 
tween the  States  the  federal  government  exercises  a 
sovereign  power  not  delegated,  by  what  law  can  the 
authority  of  the  federal  government  be  enforced  ? 

The  Constitution  is  the  supreme  law  of  the  land; 
if  the  Constitution  does  not  give  authority  for  the 
general  government  to  assume  powers  not  delegated, 
it  is  usurpation.  But  who  is  to  be  the  judge  as  to 
whether  the  federal  government  is  assuming  power 
not  delegated  ?  The  Supreme  Court  ?  The  answer  is 
not  found  here,  as  some  are  disposed  to  believe,  for 
that  in  substance  is  saying  that  the  federal  govern- 
ment is  the  umpire  between  itself  and  the  States. 
The  Supreme  Court  has  no  existence  apart  from  the 
creative  act  of  the  Constitution,  and  its  sphere  of 
action  is  as  much  prescribed  by  that  document  as 
Congress  or  the  executive  functions  of  government. 
The  States  in  the  exercise  of  their  sovereignty  were 
judges  as  to  whether  they  would  remain  in  the  union 
or  retire  from  it.  To  remain  in  the  union  obligated 
them  to  keep  all  the  laws  enacted  by  the  government 
of  the  union.  To  refuse  to  keep  these,  practically 
dissolved  their  relation  with  the  union. 

When  we  give  the  matter  earnest  thought  it  is 
difficult  to  see  how  a  State  can  be  considered  a  part 
of  the  federal  government  when  it  does  not  co-operate 
with  the  federal  power.  If  the  Constitution  is  the 
supreme  law  of  the  land,  then  it  must  be  obeyed  by 


182  A  STUDY  IN 

every  part  of  the  government.  Now  we  learn  from 
a  careful  study  of  tlie  record  of  the  events  in  the 
history  of  the  federal  government,  that,  while  South 
Carolina  threatened  to  nullify  the  tariff  laws  of  1832, 
she  did  not  in  fact  do  so ;  nullification  was  unneces- 
sary inasmuch  as  the  State  gained  her  point,  as  is 
seen  by  what  is  called  "the  Clay  Compromise."  But 
fifteen  States  north  of  the  Potomac  and  Ohio  rivers 
not  only  threatened,  but  did  nullify,  refuse  to  obey, 
a  plain  obligation  of  the  Constitution.  We  are  now 
speaking  of  what  is  known  as  "Personal  Liberty 
Bills,"  passed  by  the  legislature  of  these  fifteen 
States.  The  Constitution  says.  Article  IV,  Section 
2,  Paragraph  3 :  "No  person  held  to  service  or  labor 
in  one  State,  under  the  laws  thereof,  escaping  into 
another,  shall,  in  consequence  of  any  law  or  regula- 
tion therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  upon  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due."  (See 
Constitution.)  It  is  to  be  noted  that  this  paragraph 
is  not  an  enactment  of  Congress,  but  is  one  of  the 
principal  parts  of  the  agreement  between  the  States. 
It  is  not  a  law  enacted  by  a  political  party  in  the 
majority  in  Congress,  but  it  is  a  part  of  that  supreme 
law  of  the  land  which  each  one  of  the  executive  offi- 
cers of  each  of  these  fifteen  States  had  taken  an  oath 
to  uphold  and  carry  out.  In  spite  of  this  oath  these 
State  executives  refused  to  honor  this  paragraph  of 
the  compact  of  the  union.  These  fifteen  States 
passed,  as  we  have  said,  their  personal  liberty  bills, 


STATE  RIGHTS  183 

the  spirit  of  which,  and  the  execution  of  which,  can  ' 
be  called  nothing  but  nullification. 

Now,  in  the  study  of  this  question  we  are  forced 
to  ask,  in  the  exercise  of  what  right  did  these  States 
enact  such  laws  ?  It  can  only  be  answered  by  their  ; 
claim  to  exercise  the  right  of  State  sovereignty. 
IN'ow,  if  they  have  a  right  as  States  to  exercise  a 
sovereign  authority  so  far  as  to  refuse  to  do  what  y 
they  have  sworn  they  would  do,  why  hurl  anathemas 
at  South  Carolina  for  doing  the  same  thing,  or 
rather  a  similar  thing?  INTo  student  of  the  history  of 
this  country  can  honestly  deny  that  this  act  on  the  j 
part  of  fifteen  States  of  the  imion  was  an  open  and 
direct  violation  of  the  Constitution  which  bound  the  j 
States  together  in  the  federal  government,  and  this 
refusal  to  do  what  they  had  solemnly  agreed  and 
sworn  they  would  do  was  a  dissolution  of  the  federal 
bond.  For  any  governor  of  any  State  to  excuse 
himself  on  the  plea  that  he  could  not  in  conscience 
return  fugutive  slaves,  the  plain  answer  is,  if  he 
occupied  an  official  position  the  obligation  of  which 
caused  him  to  do  what  he  thought  was  wrong,  he  in 
honor  was  bound  to  resign  the  position;  or  he,  by 
remaining  in  the  position  and  refusing  to  do  what 
he  had  under  oath  agreed  to  do,  was  guilty  of  per- 
jury. An  honest  mind  can  see  it  in  no  other  light. 
For  the  State  officially  to  refuse  to  obey  any  part  of 
the  Constitution  is  to  dissolve  the  bond  of  government  ,^ 
under  that  Constitution.  As  Mr.  Daniel  Webster 
said  in  his  Capon  Springs  speech  June  28,  1851 : 


184  A  STUDY  IN 

"A  bargain  cannot  be  broken  on  one  side  and  still 
bind  the  other  side." 

!N^ow,  it  is  very  difficult  for  an  ordinary  student  of 
this  subject  to  see  why,  if  fifteen  States  in  the  exer- 
cise of  their  sovereign  powers  can  refuse  to  obey  one 
of  the  fundamental  articles  of  that  which  made  tho 
federal  government,  thirteen  or  more  States  in  the 
exercise  of  their  sovereign  rights  cannot  say  they 
will  be  no  longer  bound  by  the  instrument  which 
united  them  in  the  same  government.  It  is  hard  to 
see  by  what  right  the  fifteen  can  say  to  the  thirteen 
or  more.  You  shall  not  exercise  the  same  sovereign 
power  we  do.  There  is  nothing  in  the  true  record 
of  the  case  to  show  that  the  Southern  States  ever 
asked  for  a  change  of  the  Constitution ;  there  is  every- 
thing in  the  true  record  of  the  case  to  show  that  the 
South  was  true  to  every  obligation  she  assimied  in  tho 
federal  compact.  And  in  the  further  study  of  the 
subject  two  questions  must  be  answered: 

1.  Did  the  Southern  States  have  a  right  to  secede? 

2.  Were  there  causes  sufficient  to  lead  them  to 
exercise  that  right? 

Let  us  take  up  the  first  question.  Did  the  Southern 
States  have  a  right  to  secede  ?  This  can  be  answered 
in  no  other  way  than  to  affirm  they  had. 

First.  From  the  nature  of  the  federal  government 
it  was  a  government  by  agreement.  It  was  a  govern- 
ment between  the  States,  as  seen  in  the  language  of 
the  instrument  that  published  the  fact  of  the  exist- 
ence of  the  government,  i.  e.,  the  Constitution.     It 


STATE  EIGHTS  185 

was  not  over  the  States;  it  was  not  in  place  of  the 
States.  It  was  not  a  government  with  more  authority 
than  the  States,  but  with  that  authority  only  which 
was  delegated  by  the  States.  This  government  was 
regarded  by  all  who  were  Presidents  from  Jefferson 
to  Lincoln  as  a  government  between  sovereign  States 
— a  government  by  compact,  by  agreement.  Its  name 
implied  as  much ;  it  was  a  federal  government.  Judge 
Story  admits  that  if  the  federal  government  is  a  com- 
pact between  sovereign  States,  then  there  is  such 
a  thing  as  the  right  of  secession.  We  have  seen  that 
the  government  was  made  by  the  States,  as  such,  and 
declared  to  be  between  the  States.  If  that  is  not  a 
compact,  we  know  not  what  else  to  term  it.  If  in 
the  exercise  of  sovereign  authority  they  as  separate 
and  distinct  States  had  a  right  to  agree  to  join  a 
government  "for  a  more  perfect  union,  established 
justice,  insure  domestic  tranquillity,  provide  for  the 
common  defense,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity,"  when  that  government  no  longer  accom- 
plished the  purpose  for  which  it  was  instituted  they 
certainly  had  a  rigJif,  in  the  exercise  of  the  same 
authority,  to  dissolve  what  they  had  made, — unless 
it  can  be  shown  they  gave  up  their  sovereignty,  which 
is  an  absurdity ;  sovereignty  power  can  be  delegated, 
can  be  given  up  for  a  time  for  a  purpose,  but  abso- 
lute sovereignty  cannot  be  willingly  given  up. 

Second.  It  was  the  judgment  of  such  leading  men 
of  the   l^orth   as   Horace   Greeley,   Hr.   Benjamin 


186  A  STUDY  IN 

Wade,  of  Ohio,  and  Mr.  Abraham  Lincoln  ihat 
causes  sufficient  to  lead  to  secession  have  existed. 
In  the  Senate  of  the  United  States,  on  February  23, 
1855,  Mr.  Wade  said:  "Who  is  to  be  the  judge  in 
the  last  resort  of  the  violation  of  the  Constitution 
of  the  United  States  by  the  enactment  of  a  law? 
Who  is  the  final  arbiter — the  general  government  or 
the  States  in  their  sovereignty?  Why,  sir,  to  yield 
that  point  is  to  yield  up  all  the  rights  of  the  States 
to  protect  their  own  citizens,  and  consolidate  this 
government  into  a  miserable  despotism."  (Ap- 
pendix to  Congressional  Globe,  2d  session,  33d  Con- 
gress, p.  214.)  Mr.  Horace  Greeley,  in  an  editorial 
in  his  own  paper,  The  Tribune,  November  9,  1860, 
says:  "The  right  to  secede  may  be  a  revolutionary 
one,  but  it  exists  nevertheless;  and  we  do  not  see 
how  one  party  can  have  a  right  to  do  what  another 
party  has  a  right  to  prevent.  We  must  ever  resist 
the  asserted  right  of  any  State  to  remain  in  the 
Union  and  nullfy  or  defy  the  laws  thereof;  to  with- 
draw from  the  Union  is  quite  another  matter.  And 
wherever  a  considerable  section  of  our  Union  shall 
deliberately  resolve  to  go  out,  we  shall  resist  all 
coercive  measures  designated  to  keep  it  in.  We  hope 
never  to  live  in  a  republic  whereof  one  section  is 
pinned  to  the  residue  by  bayonets."  It  is  not  unkind 
to  say  that  his  hope  was  not  a  very  ardent  one,  as 
his  subsequent  conduct  shows;  he  later  used  all  the 
power  he  could  command  to  pin  by  bayonets  one 
section  of  this  country  to  the  other. 


STATE  RIGHTS  187 

Mr.  Abraham  Lincoln,  in  a  speech  delivered  in 
the  House  of  Representatives  on  January  12,  1848, 
declared  that  this  right  existed.  He  said:  "Any 
people,  any  where,  being  inclined  and  having  the 
power,  have  the  right  to  rise  up  and  shake  off  the 
existing  government  and  form  a  new  one  that  suits 
them  better.  This  is  a  most  valuable  and  sacred 
right,  a  right  which  we  hope  and  believe  is  to  liberate 
the  world.  Nor  is  this  right  confined  to  cases  in 
which  the  whole  people  of  an  existing  government 
may  choose  to  exercise  it.  Any  portion  of  such  people 
that  can,  may  revolutionize  and  make  their  own  of 
so  much  of  the  territory  as  they  inhabit.  More  than 
this,  a  majority  of  any  portion  of  such  people  may 
revolutionize,  putting  down  a  minority,  intermingled 
with  or  near  about  them,  who'  may  oppose  their 
movements."  (See  Congressional  Olohe,  1st  session, 
30th  Congrees,  p.  94.) 

It  is  strange  thing  in  the  study  of  this  question 
that  these  three  men,  leaders  among  their  people  in 
matters  of  government,  so  pronounced  in  their  opinion 
that  the  right  to  withdraw  from  the  existing  govern- 
ment could  not  be  denied,  should  have  become  malig- 
nantly bitter  against  the  people  of  the  South  when 
the  latter  undertook  to  do  what  this  trio  declared 
they  had  a  right  to  do. 

Must  we  in  our  study  conclude  that  they  were  pos- 
sessed of  that  evil  spirit  which  the  genius  of  Alex- 
ander Hamilton  summoned  to  corrupt  public  opinion 
until  it  should  be  "fit  for  nothing  but  mischief"  ? 


188  A  STUDY  IN 

Mr.  Lincoln  is  spoken  of  in  history  as  "Honest  Abe," 
and  held  up  as  a  noble  example  of  this  virtue  to  the 
children  in  our  schools.  The  question  suggests  itself, 
When  was  he  honest — when  he  contended  that  a 
State  or  a  portion  of  the  country  had  a  right  to 
revolutionize,  or  when  he  employed  all  the  ingenuity 
he  possessed  to  unite  one  section  of  this  country  to 
destroy  the  other  when  it  asserted  the  right  for  which 
he  had  contended  in  Congress  ?  Some  keen-witted 
politician  might  undertake  to  solve  the  contradic- 
tion, but  he  who  records  the  facts  of  history  so  that 
the  integrity  thereof  may  be  maintained  cannot  write 
him  down  as  "Honest  Abe."  To  say  one  thing  and 
do  the  opposite,  true-minded  people  cannot  term 
"honest."  It  is  interesting  to  find  an  answer  to  the 
question,  How  could  Mr.  Lincoln  accuse  of  treason 
those  who  contended  for  that  which  he  said  was  their 
right  ?  But  to  the  other  question — Did  the  Southern 
States  have  a  just  occasion  for  claiming  the  right 
that  all  parties  up  to  1861  conceded  them? — when 
we  contemplate  the  facts  in  the  case  it  is  impossible 
to  answer  in  any  other  way  than  the  affirmative. 
Every  man  who  will  study  with  unbiased  mind  the 
facts  of  history  will  conclude  that  it  was  time  for 
the  States  of  the  South  to  take  some  steps  for  their 
own  interests,  yea,  for  their  very  existence. 

The  Union  was  dissolved  years  before  1861,  or 
before  any  Southern  States  by  the  sovereign  exercise 
of  their  right  made  any  official  declaration  of  its 
withdrawal  from  the  compact  of  1Y88 ;  and  this  dis- 


STATE  RIGHTS  189 

solution  was  effected  by  the  action  of  fifteen  States. 
Maine,  N'ew  Hampshire,  Vermont,  Massachusetts, 
Connecticut,  Ehode  Island,  ISTew  York,  IN'ew  Jersey, 
Pennsylvania,  Illinois,  Indiana,  Ohio,  Michigan, 
Wisconsin,  and  Iowa  had  all  passed  what  were  termed 
"Personal  Liberty  Bills,"  the  purpose  and  effect  of 
which  was  to  make  null  and  void  Article  IV,  section 
2,  Paragraph  3,  of  the  Constitution,  which  says: 
"JSTo  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall 
in  consequence  of  any  law  or  regulation  therein,  be 
discharged  from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due."  This  was  in  the  Con- 
stitution when  adopted  by  the  States.  In  the  exercise 
of  their  sovereign  rights  they  agreed  to  adopt  it  (the 
Constitution)  as  the  supreme  law.  This  continued 
to  be  the  law  of  the  land  until  in  the  decade  of  the 
fifties.  During  this  time  fifteen  States  in  the  exer- 
cise of  their  sovereign  rights  declared  they  would 
not  obey  this  part  of  the  Constitution. 

The  law  of  Vermont  on  this  is  very  plain.  It  is 
in  these  words :  "Every  person  who  may  have  been 
held  as  a  slave  who  shall  come  or  may  be  brought 
into  this  State,  with  the  consent  of  his  or  her  alleged 
master  or  mistress,  or  who  shall  com©  or  be  brought, 
or  shall  be  in  this  State,  shall  be  free.  Every  person 
who  shall  hold,  or  attempt  to  hold,  in  this  State,  as 
a  slave  any  free  person,  in  any  form  or  for  any  time 
however  short,  under  the  pretence  that  such  a  person 


190  •  A  STUDY  m 

is  or  has  been  a  slave,  shall,  on  conviction  thereof, 
be  imprisoned  in  the  State  prison  for  a  term  not 
less  than  five  years  or  more  than  twenty,  and  be  fined 
not  less  than  one  thousand  dollars,  nor  more  than 
ten  thousand  dollars."  All  of  the  officers  of  this 
State,  as  well  as  all  the  officers  of  all  the  States, 
were  sworn  to  carry  out  the  provisions  of  the  Con- 
stitution of  the  United  States,  yet  here  is  this  State 
enacting  a  law  in  direct  antagonism  to  that  compact 
which  she  had  sworn  to  uphold.  In  other  words, 
this  State  declared  that  she  will  make  null  and  void, 
that  she  will  nullify,  the  fundamental  law  of  the  land, 
and  will  regard  it  a  penal  offense  if  any  person  will 
attempt  to  carry  out  the  sworn  obligation  of  that 
State  within  her  own  bounds.  If  Vermont,  by  such 
an  act  as  this,  and  all  the  ISTew  England  States  by  like 
enactments,  can  nullify  the  Constitution,  how  can 
they  with  consistency  condemn  South  Carolina  when 
for  the  same  reason  (viz.,  that  it  was  wrong)  she 
refused  to  obey  a  law  of  Congress  about  the  tariff  in 
1832?  No  Southern  State  ever  refused  to  comply 
with  the  obligation  of  the  federal  compact.  "No 
Southern  State  ever  asked  for  a  change  in  the  Con- 
stitution; they  simply  asked  that  all  the  States  in 
the  federal  government  would  keep  their  sworn 
obligations.  The  reply  given  above  is  the  second 
reason  why  the  Southern  States  should  use  the  right 
of  secession. 

So  anxious  was  Virginia  and  others  of  the  South- 
ern States  to  preserve  the  Union,  that  in  1861,  on  the 


STATE  RIGHTS  191 

eve  of  the  war  between  the  States,  a  peace  congress, 
as  it  was  called,  was  convened  in  Washington  to  see 
if  something  could  not  be  done  to  bring  about  a 
reeonciliation  between  the  North  and  South.  In 
that  congress  Mr.  Chase,  of  Ohio,  spoke  the  mind  of 
the  party  who  had  elected  Mr.  Lincoln  to  the  Presi- 
dency. This  speech  is  an  open  declaration  that  the 
party  in  power  would  administer  the  government  re- 
gardless of  the  Constitution.  He  says  in  part :  "Mr. 
Lincoln  was  the  candidate  of  the  people  opposed  to 
the  extension  of  slavery.  We  have  elected  him.  After 
many  years  of  earnest  advocacy  and  severe  trial  we 
have  achieved  the  triumph  of  that  principle.  By  a 
fair  and  unquestionable  majority  we  have  secured 
that  triumph.  Do  you  think  we,  who  represent  this 
majority,  will  throw  it  away  ?  Do  you  think  the 
people  would  sustain  us  if  we  under  took  to  throw 
it  away?  I  must  speak  to  you  plainly,  gentlemen 
of  the  South.  It  is  not  in  my  heart  to  deceive  youi 
I  therefore  tell  you  explicitly,  if  we  of  the  North 
and  West  would  consent  to  throw  away  all  that  has 
been  gained  in  the  recent  triumph  of  our  principles, 
the  people  would  not  sustain  us,  and  so  the  consent 
would  avail  you  nothing." 

The  man  who  uttered  these  words  was  under 
obligations  by  oath  to  carry  out  the  law  of  the  land. 
Majorities  had  a  right  to  administer  the  government, 
but  majorities  were  under  obligations  to  administer 
it  according  to  the  Constitution.  All  the  Southern 
people  wanted  to  know  was  if  those  in  power  would 


192  A  STUDY  IN 

respect  their  sworn  obligations.  This  man  says  no, 
emphatically  no.  In  another  part  of  this  same  speech 
Mr.  Chase  says  the  party  in  power  regards  that  part 
of  the  Constitution  concerning  fugitive  slaves  "a 
dead  letter."  JSTow  what  could  those  do  who  were 
true  to  their  constitutional  obligations,  when  those 
who  were  about  to  administer  the  government  boldly 
declared  that  they  would  ignore  the  requirements  of 
that  instrument  which  gave  the  government  exist- 
ence? Who  dissolved  the  Union,  those  who  con- 
tended for  their  rights  specified  in  the  bond  of  union 
for  those  who  said  they  would  not  regard  these  rights? 
It  is  the  strange  and  peculiar  phase  of  the  question 
of  dissolving  the  Union  that  those  who  insisted  upon 
the  meeting  of  the  obligations  under  the  compact 
should  be  considered  those  who  labored  to  destroy 
the  government;  that  those  who  were  in  control  of 
the  government  and  about  to  take  an  oath  to  admin- 
ister that  government  according  to  the  Constitution, 
and  did  take  such  an  oath,  openly  declared  that  they 
would  not  do  what  they  had  sworn  that  they  would 
do  should  be  regarded  as  the  ones  loyal  to  the  govern- 
ment. Common  sense  teaches  that  he  is  loyal  who 
keeps  his  sworn  obligations;  he  is  disloyal  who  says 
he  will  not  and  does  not  keep  his  sworn  obligations. 
Under  such  circumstances  the  Southern  States  were 
justified  in  the  course  they  pursued,  and  when  com- 
pelled to  fight  fought  to  conserve  constitutional 
liberty,  and  not  to  destroy  it.  If  fifteen  States  in 
that  exercise  of  their  State  sovereignty  could  nullify 


STATE  EIGHTS  193 

the  Constitution,  how  could  it  be  denied  to  the  South- 
em  States  the  right  to  do  what  they  did  to  maintain 
their  liberty  under  the  supreme  law  of  the  land? 
Mr.  Abraham  Lincoln  and  his  associates  organized 
that  party  which  destroyed  the  government  of  the 
fathers.  In  the  name  of  liberty  he  and  his  party  have 
been  guilty  of  more  deeds  of  tyranny  than  many  of 
the  kings  of  Europe  ever  dreamed  of.  As  a  politi- 
cian he  was  honest;  but  as  a  statesman,  chosen  to  ad- 
minister a  government  with  a  written  constitution 
he  must  be  eternally  recorded  dishonest;  for  an 
hoenst,  "a  righteous  man  sweareth  to  his  own  hurt  and 
changeth  not."  Lincoln  certainly  failed  to  do  this. 
Just  here  I  want  to  insert  in  this  study  of  State's 
rights  that  speech  of  Mr.  Toombs,  of  Georgia,  de- 
livered in  the  Senate  of  the  United  States,  January 
7,  1861.  Read  carefully;  it  will  make  the  status  of 
the  question  plain. 

"Inasmuch,  sir,  as  I  have  labored  earnestly,  hon- 
estly, sincerely,  with  these  men  to  avert  this  necessity, 
so  long  as  I  deemed  it  possible,  and  inasmuch  as  I 
heartily  approve  their  present  conduct  of  resistance, 
I  deem  it  my  duty  to  state  their  case  to  the  Senate, 
to  the  country,  and  to  the  civilized  world. 

"Senators,  my  countrymen  have  demanded  no  new 
government;  they  have  demanded  no  new  Con- 
stitution. Look  to  their  records  at  home,  and  here, 
from  the  beginning  of  this  strife  until  its  consumma- 
tion in  the  disruption  of  the  Union,  and  they  have 


f 


194  A  STUDY  IN 

not  demanded  a  single  thing  except  that  you  shall 
abide  by  the  Constitution  of  the  United  States;  that 
constitutional  rights  shall  be  respected,  and  that  jus- 
tice shall  be  done.  Sirs,  they  have  stood  by  your 
Constitution;  they  have  stood  by  all  its  require- 
ments; they  have  performed  all  of  its  duties  unsel- 
fishly, uncalculatingly,  disinterestedly,  until  a  party 
sprang  up  in  this  country  which  endangered  their 
social  system — a  party  which  they  arraign,  and  which 
they  charge  before  the  American  people  and  all  man- 
kind with  having  made  proclamation  of  outlawry 
against  thousands  of  millions  of  their  property  in 
the  Territories  of  the  United  States,  with  having 
aided  and  abetted  insurrection  from  within  and  inva- 
sion from  without,  with  the  view  of  subverting  their 
institutions,  and  desolating  their  homes  and  their 
firesides.  I  shall  proceed  to  vindicate  the  justice 
of  their  demands,  the  patriotism  of  their  conduct.  I 
will  show  the  injustice  which  they  suffer,  and  the 
rightfulness  of  their  resistance. 

"The  discontented  States  of  this  Union  have  de- 
manded nothing  but  clear,  distinct,  unequivocal,  well- 
acknowledged  constitutional  rights — rights  affirmed 
by  the  highest  judicial  tribunals  of  their  country; 
rights  older  than  the  Constitution ;  rights  which  are 
planted  upon  the  immutable  principles  of  natural 
justice;  rights  which  have  been  affirmed  by  the  good 
and  the  wise  of  all  countries  and  of  all  centuries.  We 
demand  no  power  to  injure  any  man.  We  demand  no 
right  to  injure  our  Confederate  States.    We  demand 


STATE  EIGHTS  195 

no  riglit  to  interfere  with  their  institutions,  either 
by  word  or  deed.  We  have  no  right  to  disturb  their 
peace,  their  tranquillity,  their  security.  We  have 
demanded  of  them  simply,  solely — nothing  else — 
to  give  us  equality,  security,  and  tranquillity.  Give 
us  these  and  peace  restores  itself. 

"I  will  now  read  my  own  demands,  acting  under 
my  own  convictions.  They  are  considered  the  de- 
mands of  an  extremist.  I  believe  this  is  the  appella- 
tion these  traitors  employ.  I  accept  their  reproach 
rather  than  their  principles.  Accepting  their  desig- 
nation of  treason  and  rebellion,  there  stands  before 
them  as  good  a  traitor  and  as  good  a  rebel  as  ever 
descended  from  revolutionary  loins.  What  do  these 
rebels  demand? 

"First.  'That  the  people  of  the  United  States  shall 
have  an  equal  right  to  emigrate  and  settle  in  the  presr 
ent,  or  any  future  acquired  Territories,  with  what- 
ever property  they  may  possess  (including  slaves), 
and  be  securely  protected  in  its  peaceable  enjoyment 
until  such  Territory  may  be  admitted  as  a  State  into 
the  Union,  with  or  without  slavery,  as  she  may  deter- 
mine, on  an  equality  with  all  existing  States !  That 
is  our  territorial  demand.  We  have  fought  for  this 
Territory,  when  blood  was  its  price.  We  have  paid 
for  it,  when  gold  was  its  price.  We  have  not  pro- 
posed to  exclude  you,  though  you  have  contributed 
very  little  of  either  blood  or  money.  I  refer  esper 
cially  to  'New  England.  We  demand  only  to  go  into 
those  Territories  upon  terms  of  equality  with  you,  as 


196  A  STUDY  IN 

equals  in  this  great  confederacy,  to  enjoy  the  common 
property  of  the  whole  Union,  and  receive  the  protec- 
tion of  the  common  government  until  the  Territory 
is  capable  of  coming  into  the  Union  as  a  sovereign 
State,  when  it  may  fix  its  own  institutions  to  suit 
itself.' 

"The  second  proposition  is:  'That  property  in 
slaves  shall  be  entitled  to  the  same  protection  from 
the  government  of  the  United  States,  in  all  of  its 
departments  everywhere,  which  the  Constitution 
confers  the  power  upon  it  to  extend  to  any  other 
property,  provided  nothing  herein  contained  shall 
be  construed  to  limit  or  restrain  the  right  now  be- 
longing to  every  State  to  prohibit,  abolish,  or  estab- 
lish and  protect  slavery  within  its  limits.'  We  de- 
mand of  the  common  government  to  use  its  granted 
powers  to  protect  our  property  as  well  as  yours. 
Ought  it  not  to  do  so  ?  You  say  no.  Every  one  of 
you  upon  the  committee  said  no.  Your  Senators  say 
no.  Your  House  of  Representatives  say  no.  Through- 
out the  length  and  breadth  of  your  conspiracy  against 
the  Constitution,  there  is  but  one  shout  of  no !  This 
recognition  of  this  right  is  the  price  of  my  alle- 
giance. Withhold  it  and  you  do  not  get  my  obe- 
dience. 

"We  demand  in  the  next  place,  'that  persons  com- 
mitting crimes  against  slave  property  in  one  State 
and  fleeing  to  another,  shall  be  delivered  up  in  the 
same  manner  as  persons  committing  crimes  against 
other  property,  and  that  the  laws  of  the  State  from 


STATE  RIGHTS  197 

whicli  such  persons  flee  shall  be  the  test  of  criminal- 
ity.' That  is  another  one  of  the  demands  of  an 
extremist  and  rebel.  The  Constitution  of  the  United 
States,  article  IV.,  section  2,  says :  'A  person  charged 
in  any  State  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice,  and  be  found  in  another 
State,  shall,  on  demand  of  the  executive  authority  of 
the  State  from  which  he  fled,  be  delivered  up,  to  be 
removed  to  the  State  having  jurisdiction  of  the 
crime.'  But  some  of  the  non-slaveholding  States, 
treacherous  to  their  oaths  and  compacts,  have  steadily 
refused,  if  the  criminal  only  stole  a  negro,  and  that 
negro  a  slave,  to  deliver  him  up.  It  was  refused 
twice  on  the  requisition  of  my  own  State,  as  long  as 
twenty-two  years  ago.  It  was  refused  by  Kent  and 
Fairfield,  Governors  of  Maine;  and  representing,  I 
believe,  each  of  the  then  Federal  parties.  We  ap- 
pealed to  fraternity,  but  we  submitted,  and  this  con- 
stitutional right  has  been,  practically,  a  dead  letter 
from  that  day  to  this. 

"The  next  case  came  up  between  us  and  the  State 
of  New  York,  when  the  present  senior  Senator  (Mr. 
Seward)  was  the  Governor  of  that  State;  and  he 
refused  it.  Why  ?  He  said  it  was  not  against  the 
laws  of  ISTew  York  to  steal  a  negro,  and  therefore  he 
would  not  comply  with  the  demand.  He  made  a  simi- 
lar refusal  to  Virginia.  Yet  these  are  our  confed- 
erates— these  are  our  sister  States.  There  is  the  bar- 
gain; there  is  the  compact.  You  have  sworn  to  it. 
Both  these  governors  swore  to  it.    The  Senator  from 


198  A  STUDY  IN 

l^Tew  York  swore  to  it.  The  Governor  of  Ohio  swore 
to  it  when  he  was  inaugurated.  You  cannot  bind 
them  by  oaths.  Yet  they  talk  to  us  of  treason.  It  is 
natural  we  should  want  this  provision  of  the  Consti- 
tution carried  out.  By  the  text  and  letter  of  the  Con- 
stitution, you  agreed  to  give  them  up.  You  have 
sworn  to  do  it,  and  you  have  broken  your  oaths ! 

"The  next  stipulation  is,  that  fugitive  slaves  shall 
be  surrendered.  Here  is  the  Constitution:  ''No'  per- 
son held  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  con- 
sequence of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  de- 
livered up  on  claim  of  the  party  to  whom  such  ser- 
vice or  labor  may  be  due.'  This  language  is  plain, 
and  everybody  understood  it  the  same  way  for  the 
first  forty  years  of  our  government.  In  1793,  in 
Washington's  time,  an  act  was  passed  to  carry  out 
this  provision.  It  was  adopted  unanimously  in  the 
Senate  of  the  United  States,  and  nearly  so  in  the 
House  of  Representatives.  Nobody,  then,  had  in- 
vented pretexts  to  show  that  the  Constitution  did  not 
mean  a  negro  slave.  It  was  clear,  it  was  plain.  Not 
only  the  Federal  courts,  but  all  the  local  courts  in 
all  the  States,  decided  that  this  was  a  constitutional 
obligation. 

"How  is  it  now?  I  have  heretofore  shown  that 
this  plain  constitutional  provision  has  been  violated 
by  specific  acts  in  thirteen  of  these  States. 

"The  next  demand  made  on  behalf  of  the  South 


STATE  EIGHTS  199 

is,  %at  Congress  shall  pass  efficient  laws  for  the 
punishment  of  all  persons,  in  any  of  the  States,  who 
shall,  in  any  manner,  aid  and  abet  invasion  or  insur- 
rection in  any  other  State,  or  commit  any  other  act 
against  the  laws  of  nations  tending  to  disturb  the 
tranquillity  of  the  people  or  government  of  any  other 
State.' 

"That  is  a  very  plain  principle.  The  Constitu- 
tion of  the  United  States  now  requires,  and  gives 
Congress  express  power,  to  define  and  punish  piracies 
and  felonies  committed  on  the  high  seas,  and  offences 
against  the  laws  of  nations.  When  the  honorable  and 
distinguished  Senator  from  Illinois  (Mr.  Douglas) 
last  year  introduced  a  bill  for  the  purpose  of  punish- 
ing people  thus  offending  under  that  clause  of  the 
Constitution,  Mr.  Lincoln  in  his  speech  at  'New  York, 
which  I  have  before  me,  declared  that  it  was  a  'sedi- 
tion bill' ;  his  press  and  party  hooted  at  it.  So  far 
from  recognizing  the  bill  as  intended  to  carry  out 
the  Constitution  of  the  United  States,  it  received 
their  jeers  and  gibes.  The  Republicans  of  Massa- 
chusetts elected  the  admirer  and  eulogist  of  John 
Brown's  courage,  as  their  governor,  and  we  may  sup- 
pose he  will  throw  no  impediments  in  the  way  of 
John  Brown's  successors. 

"We  demand  these  five  propositions.  Are  they 
not  right  ?  Are  they  not  just  ?  Take  them  in  detail, 
and  show  that  they  are  not  warranted  by  the  Con- 
stitution, by  the  safety  of  our  people,  by  the  prin- 
ciples of  eternal  justice.     We  will  pause,  and,  con- 


200  A  STUDY  IN 

sider  them ;  but  mark  me,  we  will  not  let  you  decide 
the  questions  for  us. 

"But  we  are  told  by  well-meaning  but  simple- 
minded  people  that,  admit  your  wrongs,  your  reme- 
dies are  not  justifiable.  Senators,  I  have  little  care 
to  dispute  remedies  with  you,  unless  you  propose  to 
redress  my  wrongs.  If  you  propose  that  in  good 
faith,  I  will  listen,  with  respectful  deference;  but 
when  the  objectors  to  my  remedies  propose  no  ade- 
quate ones  of  their  own,  I  know  what  they  mean  by 
the  objection.  They  mean  submission.  But  still  I 
will  as  yet  argue  it  with  them. 

"These  thirteen  Colonies  originally  had  no  bond 
of  Union  whatever — no  more  than  Jamaica  and 
Australia  have  to-day.  They  were  wholly  separate 
communities,  independent  of  each  other,  and  de- 
pendent on  the  crown  of  Great  Britain.  All  the 
Union  between  them  that  was  ever  made  is  in  writing. 
They  made  two  written  compacts.  On©  was  known 
as  the  Articles  of  Confederation,  which  declared  that 
the  Union  thereby  formed  should  be  perpetual — an 
argument  very  much  relied  upon  by  'the  friends  of 
the  Union,'  now.  Those  Articles  of  Confederation, 
in  terms,  declared  that  they  should  be  perpetual.  I 
believe  that  expression  is  used  in  our  last  treaty 
with  Billy  Bowlegs,  the  chief  of  the  Seminoles.  I 
know  it  is  a  phrase  used  in  treaties  with  all  nations, 
civilized  and  savage.  Those  that  are  not  declared 
eternal  are  the  exceptions ;  but  usually,  treaties  pro- 
fess  to   be   for    'perpetual    friendship    and    amity,' 


STATE  RIGHTS  201 

according  to  their  terms.  So  was  that  treaty  between 
the  States.  After  a  while,  though  the  politicians  said 
it  did  not  work  well,  it  carried  ns  through  the  revolu- 
tion. The  difficulty  was,  that  after  the  war  there 
were  troubles  about  the  regulation  of  commerce,  about 
navigation,  but  above  all  about  financial  matters. 
The  government  had  no  means  of  getting  at  the 
pockets  of  the  people ;  and  but  for  that  one  difficulty 
this  present  government  would  never  have  been  made. 
The  country  is  deluded  with  the  nonsense  that  this 
bond  of  Union  was  cemented  by  the  blood  of  brave 
men  in  the  revolution.  Sir,  it  is  false.  It  never  cost  a 
drop  of  blood.  A  large  portion  of  the  best  men  of 
the  revolution  voted  against  it.  It  was  carried  in 
the  Convention  of  Virginia  by  but  ten  majority,  and 
among  its  opponents  were  Monroe  and  Henry,  and 
other  men  who  had  fought  the  war,  who  recorded  their 
judgment  that  it  was  not  a  good  bond ;  and  I  am  satis- 
fied to-day  that  they  were  the  wiser  men.  Some  of 
the  bravest,  and  the  boldest,  and  the  best  men  of  the 
revolution,  who  fought  from  its  beginning  to  its  end, 
were  opposed  to  the  plan  of  Union.  Are  we  to  be 
deterred  by  the  cry,  that  we  are  laying  our  unhal- 
lowed hands  on  this  holy  altar?  Sir,  I  have  no 
hesitation  in  saying  that  a  very  large  portion  of  the 
people  of  Georgia,  whom  I  represent,  prefer  to  remain 
in  this  Union,  with  their  constitutional  rights — I 
would  say  ninety  per  cent,  of  them — ^believing  it  to 
be  a  good  government.  I  think  it  had  but  little  to  do 
with   their  prosperity  beyond  securing  their  peace 


202  A  STUDY  IIT 

with  other  nations,  and  that  boon  has  been  paid  for 
at  a  price  that  no  free  man  ought  to  submit  to.  These 
are  my  opinions ;  they  have  been  announced  to  my 
constituents,  and  I  announce  them  here.  Had  I  lived 
in  that  day,  I  should  have  voted  with  the  minority 
in  Virginia,  with  Monroe,  Henry,  and  the  illustrious 
patriots  who  composed  the  seventy-nine  votes  (in 
the  Virginia  Convention)  against  the  adoption  of  the 
present  plan  of  government.  In  my  opinion,  if  they 
had  prevailed,  to-day  the  men  of  the  South  would 
have  the  greatest  and  most  powerful  nation  of  the 
earth.     Let  this  judgment  stand  for  future  ages. 

"Senators,  the  Cbnstitution  is  a  'compact.'  It 
contains  all  our  obligations  and  duties  of  the  Federal 
government.  I  am  content,  and  have  ever  been  con- 
tent, to  sustain  it.  While  I  doubt  its  perfection  ;  while 
I  do  not  believe  it  was  a  good  compact ;  and  while  I 
never  saw  the  day  that  I  would  have  voted  for  it  as 
a  proposition  de  novo ;  I  have  given  to  it,  and  intend 
to  give  to  it,  unfaltering  support  and  allegiance ;  but 
I  choose  to  put  that  allegiance  on  the  true  ground, 
not  on  the  false  idea  that  anybody's  blood  was  shed 
for  it.  I  say  that  the  Constitution  is  the  whole  com- 
pact. All  the  obligations,  all  the  chains  that  fetter 
the  limbs  of  my  people,  are  nominated  in  the  bond, 
and  they  wisely  excluded  any  conclusion  against 
them,  by  declaring  that  the  powers  not  delegated  by 
the  Constitution  to  the  United  States  or  forbidden 
by  it  to  the  States,  belonged  to  the  States  respectively, 
or  the  people,     l^ow  I  will  try  it  by  that  standard; 


STATE  EIGHTS  203 

I  will  subject  it  to  that  test.  The  law  of  nature,  the 
law  of  justice  would  say — and  it  is  so  expounded 
by  the  publicists^ — that  equal  rights  in  the  common 
property  shall  be  enjoyed.  Even  in  a  monarchy,  the 
king  cannot  prevent "  the  subjects  from,  enjoying 
equality  in  the  disposition  of  the  public  property. 
Even  in  a  despotic  government  this  principle  is 
recognized.  It  was  the  blood  and  the  money  of  the 
whole  people  (says  the  learned  Grotius,  and  say  all 
the  publicists)  which  acquired  the  public  property, 
and  therefore  it  is  not  the  property  of  the  sover- 
eign. This  right  of  equality  being  then,  accord- 
ing to  justice  and  natural  equity,  a  right  belong- 
ing to  all  States,  when  did  we  give  it  up  ?  You 
say  Congress  has  a  right  to  pass  rules  and  regulations 
concerning  the  territory  and  other  property  of  the 
United  States.  Very  well.  Does  that  exclude  those 
whose  blood  and  money  paid  for  it  ?  Does  'dispose 
of  mean  to  rob  the  rightful  owners  ? 

"But  you  say,  try  the  right.  I  agree.  But  how  ? 
By  our  judgment  ?  I^o ;  not  until  the  last  resort. 
What  then  ?  by  yours  ?  'No ;  not  until  the  same  tibne. 
How  then  try  it  ?  The  South  has  always  said  by  the 
Supreme  Court.  But  that  is  in  our  favor,  and  Lin- 
coln says  he  will  not  stand  that  judgment.  Then 
each  must  judge  for  himself  of  the  mode  and  manner 
of  redress.  But  you  deny  us  that  privilege  and 
finally  reduce  us  to  accepting  your  judgment.  We 
decline  it.  You  say  you  will  enforce  it  by  executing 
laws;  that  means  your  judgment  of  what  the  laws 


204  A  STUDY  IN 

ought  to  be.  The  Senator  from  Kentucky  comes  to 
jour  aid,  and  says  lie  can  find  no  constitutional  right 
of  secession.  Perhaps  not;  but  the  Constitution  is 
not  the  place  to  look  for  State  rights.  If  that  right 
belongs  to  independent  States,  and  they  did  not  cede 
it  to  the  Federal  government,  it  is  reserved  to  the 
States  or  to  the  people.  Ask  your  new  commentator 
where  he  gets  your  right  to  judge  for  us.  Is  it  in  the 
bond? 

"The  Supreme  Court  has  decided  that  by  the  Con- 
stitution we  have  a  right  to  go  to  the  Territories,  and 
be  protected  there  with  our  property.  You  say  we 
cannot  decide  the  compact  for  ourselves.  Well,  can 
the  Supreme  Court  decide  it  for  us?  Mr.  Lincoln 
says  he  does  not  care  what  the  Supreme  Court  de- 
cides, he  will  turn  us  out  anyhow.  He  says  this  in 
his  debate  with  the  honorable  Senator  from  Illinois 
(Mr.  Douglas).  I  have  it  before  me.  He  said  he 
would  vote  against  the  decision  of  the  Supreme 
Court.  Then  you  do  not  accept  that  arbiter.  You  will 
not  take  my  construction ;  you  will  not  take  the  Su- 
preme Court  as  an  arbiter;  you  will  not  take  the 
practice  of  the  governlnent;  you  will  not  take  the 
treaties  under  Jefferson  and  Madison ;  you  will  not 
take  the  opinion  of  Madison,  upon  the  very  question 
of  prohibition  in  1820.  What,  then,  will  you  take  ? 
You  will  take  nothing  but  your  own  judgment ;  that 
is,  you  will  not  only  judge  for  yourselves,  not  only 
discard  the  court,  discard  our  construction,  discard 
the  practice  of  the  government,  but  you  will  drive  us 


STATE  EIGHTS  206 

out  simply  because  jou  will  it.  Your  party  says  that 
you  will  not  take  the  decision  of  the  Supreme  Court. 
You  said  so  at  Chicago;  you  said  so  in  committee; 
every  man  of  you  in  both  Houses  says  so.  What  are 
you  going  to  do?  You  say  we  shall  submit  to  your 
construction.  We  shall  do  it,  if  you  can  make  us; 
but  not  otherwise,  or  in  any  other  manner.  That  is 
settled. 

"You  have  no  warrant  in  the  Constitution  for  this 
declaration  of  outlawry.  The  Court  says  you  have 
no  right  to  make  it.  The  treaty  says  you  shall  not 
do  it.  The  treaty  of  1803  declares  that  the  property 
of  the  people  shall  be  protected  by  the  government, 
until  they  are  admitted  into  the  Union  as  a  State. 
That  treaty  covers  Kansas  and  ISTebraska.  The  law 
passed  in  1804,  or  1805,  under  Mr.  Jefferson,  pro- 
tects property  in  slaves  in  that  very  Territory.  In 
1820,  when  the  question  of  prohibition  came  up,  Mr. 
Madison  declared  it  was  not  warranted  by  the  Con- 
stitution, and  Jefferson  denounced  its  abettors  as 
enemies  of  the  human  race.  Here  is  the  court ;  here 
are  our  fathers;  here  is  contemporaneous  exposition 
for  fifty  years,  all  asserting  our  right.  The  Republi- 
can party  says,  'We  care  not  for  your  precedents,  or 
practices;  we  have  progressive  politics,  as  well  as  a 
progressive  religion.' 

"But  no  matter  what  may  be  our  grievances,  the 
honorable  Senator  from  Kentucky  (Mr.  Crittenden) 
says  we  cannot  secede.  Well,  what  can  we  do  ?  Wa 
cannot  revolutionize;   he  will   say  that  is  treason. 


206  A  STUDY  IN 

What  can  we  do?  Submit?  They  saj  they  are  the 
strongest  and  they  will  hang  us.  Very  well,  I  sup- 
pose we  are  to  be  thankful  for  that  boon.  We  will 
take  that  risk.  We  will  stand  by  the  right;  we  will 
take  the  Constitution ;  we  will  defend  it  by  the  sword 
with  the  halter  around  our  necks !  Will  that  satisfy 
the  honorable  Senator  from  Kentucky  ?  You  cannot 
intimidate  my  constituents  by  talking  to  them  about 
treason.  They  are  ready  to  fight  for  the  right  with 
the  rope  around  their  necks! 

"But  although  I  insist  upon  this  perfect  equality 
in  the  Territories,  yet,  when  it  was  proposed,  as  I 
imderstand  the  Senator  from  Kentucky  now  pro- 
poses, that  the  line  of  36° -30'  shall  be  extended, 
acknowledging  and  protecting  our  property  on  the 
south  side  of  that  line,  for  the  sake  of  peace — perma- 
nent peace — I  said  to  the  committee  of  thirteen,  and 
I  say  here,  that  with  other  satisfactory  provisions  I 
would  accept  it. 

"Yet,  not  only  did  your  committee  refuse  that,  but 
my  distinguished  friend  from  Mississippi  (Mr. 
Davis) — another  moderate  gentleman  like  myself— 
proposed  simply  to  get  a  recognition  that  we  had  the 
right  to  our  own ;  that  man  could  have  property  in 
man ;  and  it  met  with  the  unanimous  refusal  even  of 
the  most  moderate.  Union-saving,  compromising  por- 
tion of  the  Republican  party.  They  do  not  intend  to 
acknowledge  it. 

"Very  well ;  you  not  only  want  to  break  down  our 
constitutional  rights;  you  not  only  want  to  upturn 


STATE  EIGHTS  207 

our  social  system;  your  people  not  only  steal  our 
slaves,  and  make  them  freemen  to  vote  against  us; 
but  you  seek  to  bring  an  inferior  race  in  a  condition 
of  equality,  socially  and  politically,  with  our  own 
people.  Well,  sir,  the  question  of  slavery  moves  not 
the  people  of  Georgia  one-half  as  much  as  the  fact 
that  you  insult  their  rights  as  a  community.  You 
•  Abolitionists  are  right  when  you  say  that  there  are 
thousands  and  tens  of  thousands  of  men  in  Georgia, 
and  all  over  the  South,  who  do  not  own  slaves.  A 
very  large  portion  of  the  people  of  Georgia  own  none 
of  them.  In  the  mountains  there  are  comparatively 
but  few  of  them ;  but  no  part  of  our  people  are  more 
loyal  tO'  their  race  or  country  than  our  bold  and  brave 
mountain  population ;  and  every  flash  of  the  electric 
wires  brings  me  cheering  news  from  our  mountain 
tops,  and  our  valleys,  that  these  sons  of  Georgia  are 
excelled  by  none  of  their  countrymen  in  loyalty  to 
the  rights,  the  honor,  and  the  glory  of  the  common- 
wealth. They  say,  and  well  say,  this  is  our  question ; 
we  want  no  negro  equality,  no  negro  citizenship ;  we 
want  no  mongrel  race  to  degrade  our  own ;  and  as  one 
man  they  would  meet  you  upon  the  border  with  the 
sword  in  one  hand,  and  the  torch  in  the  other.  We 
will  tell  you  when  we  choose  to  abolish  this  thing — < 
it  must  be  done  under  our  direction,  and  according 
to  our  will — our  own,  our  native  land,  shall  determine 
this  question,  and  not  the  Abolitionists  of  the  North. 
That  is  the  spirit  of  our  freemen. 

"I  have  already  adverted  to  the  proposition  in  re- 


208  A  STUDY  IN 

gard  to  giving  up  criminals  who  are  charged  with 
stealing  negroes,  and  I  have  referred  to  the  cases  of 
ll^aine,  New  York  and  Ohio.  I  come  now  to  the  last 
specification — the  requirement  that  laws  should  be 
passed  punishing  all  who  aid  and  abet  insurrection. 
These  are  offences  recognized  by  the  laws  of  natiop 
as  inimical  to  all  society ;  and  I  will  read  the  opinions 
of  an  eminent  ■  publicist,  when  I  get  to  that  point. 
I  said  that  you  had  aided  and  abetted  insurrection. 
John  Brown  certainly  invaded  Virginia.  John 
Brown's  sympathizers,  I  presume,  are  not  Democrats. 
Two  of  the  accomplices  of  John  Brown  fled — one  to 
Ohio,  one  to  Iowa.  The  governors  of  both  States 
refused  to  give  up  the  fugitives  from  justice.  The 
party  maintained  them.  I  am  aware  that,  in  both 
cases,  pretexts  were  gotten  up,  to  cover  the  shame  of 
the  transaction.  I  am  going  to  show  you  that  their 
pretexts  were  hollow,  unsubstantial,  not  only  against 
constitutional  law,  but  against  the  law  of  nations.  I 
will  show  you  that  it  was  their  duty  to  seize  them 
under  the  law  of  nations,  and  bring  them  to  their 
Confederate  States,  or  even  to  a  friendly  State.  The 
first  authority  I  will  read  is  Vattel  on  the  Law  of 
Nations.  If  there  had  been  any  well-founded  ground, 
if  the  papers  had  been  defective,  if  the  case  had  been 
defectively  stated,  what  was  the  general  duty  of  a 
friendly  State  without  any  constitutional  obligations  ? 
This  general  principle  is,  that  one  State  is  bound 
to  restrain  its  citizens  from  doing  anything  tending 
to  create  disturbance  in  another  State:  to  foment 


STATE  EIGHTS  209 

disorders;  to  corrupt  its  citizens,  or  to  alienate  its 
allies.    Vattel  says,  page  162  : 

"  'And  since  the  latter  (the  sovereign)  ought  not 
to  suffer  his  subjects  to  molest  the  subjects  of  another 
State,  or  to  do  them  an  injury,  much  less  to  give 
open,  audacious  offence  to  foreigTi  powers,  he  ought 
h  compel  the  transgressors  to  make  reparation  for 
the  damage  or  injury,  if  possible,  or  to  inflict  on  him 
an  exemplary  punishment;  or  finally,  according  to 
the  nature  and  circumstances  of  the  case,  to  deliver 
him  up  to  the  offended  State,  to  be  there  brought  to 
justice.  This  is  pretty  generally  observed  with  re- 
spect to  great  crimes,  which  are  equally  contrary  to 
the  laws  and  safety  of  all  nations.  Assassins,  incen- 
diaries, and  robbers,  are  seized  everywhere  at  the 
desire  of  the  sovereign  in  whose  territories  the  crime 
was  committed,  and  are  delivered  up  to  his  justice. 
The  matter  is  carried  still  further  in  States  that  are 
more  closely  connected  by  friendship  and  good  neigh- 
borhood. Even  in  cases  of  ordinary  transgressions, 
which  are  only  subjects  of  civil  prosecution,  either 
with  a  view  to  the  recovery  of  damages,  or  the  inflic- 
tion of  a  slight  civil  punishment,  the  subjects  of  two 
neighboring  States  are  reciprocally  obliged  to  appear 
before  the  magistrate  of  the  place  where  they  are 
accused  of  having  failed  in  their  duty.  Upon  a 
requisition  of  that  magistrate,  called  letter-rogatory, 
they  are  summoned  in  due  form  by  their  own  mag- 
istrates, and  obliged  to  appear.  An  admirable  insti- 
tution, by  means  of  which  many  neighboring  States 


210  A  STUDY  m 

live  togetlier  in  peace,  and  seem  to  form  only  one 
Republic !  This  is  in  force  through  all  Switzerland. 
As  soon  as  the  letters-rogatorj  are  issued  in  form,  the 
superior  of  the  accused  is  bound  to  enforce  them.  It 
belongs  not  to  him  to  examine  whether  the  accusa- 
tion be  true  or  false ;  he  is  to  presume  on  the  justice 
of  his  neighbor,  and  not  to  suffer  any  doubts  on  his 
own  part  to  impair  an  institution  so  well  calculated 
to  preserve  harmony  and  good  understanding  between 
the  States !' 

"That  is  the  law  of  nations,  as  declared  by  one  of 
its  ablest  expounders ;  but,  besides,  we  have  this  prin- 
ciple embodied  in  the  Constitution.  We  have  there 
the  obligation  to  deliver  up  fugitives  from  justice; 
and  though  it  is  in  the  Constitution,  though  it  is 
sanctioned,  as  I  said,  by  all  ages  and  all  centuries, 
by  the  wise  and  the  good  everywhere,  our  Confed- 
erate States  are  seeking  false  pretexts  to  evade  a 
plain,  social  duty,  in  which  are  involved  the  peace 
and  security  of  all  society.  If  we  had  no  Constitu- 
tion, this  obligation  would  devolve  upon  friendly 
States ;  if  there  were  no  Constitution,  we  ought  to 
demand  it.  But,  instead  of  giving  us  this  protec- 
tion, we  are  met  with  reproaches,  reviling  tricks, 
and  treachery,  to  conceal  and  protect  incendiaries  and 
murderers. 

"This  man.  Brown,  and  his  accomplices,  had  sym- 
pathizers. Who  were  they?  One  of  them,  as  I 
have  before  said,  who  was,  according  to  his  public 
speeches,  a  defender  and  laudator  of  John  Brown,  is 


STATE  EIGHTS  211 

Governor  of  Massachusetts.  Other  officials  of  that 
State  applauded  Brown's  heroism,  magnified  his  cour- 
age, and  no  doubt  lamented  his  ill  success.  Through- 
out the  whole  ITorth,  public  meetings,  immense 
gatherings,  triumphal  processions,  the  honors  of  the 
hero  and  conqueror,  were  awarded  to  this  incendiary 
and  assassin.  They  did  not  condemn  the  traitor; 
think  you  they  abhorred  the  treason  ? 

"Yet,  I  repeat,  when  a  distinguished  senator  from 
a  non-slaveholding  State  (Mr.  Douglas)  proposed 
to  punish  such  attempts  at  invasion  and  insurrection, 
Lincoln  and  his  party  come  before  the  world  and  say, 
'Here  is  a  sedition  law.'  To  carry  out  the  Constitu- 
tion, to  protect  States  from  invasion,  and  suppress 
insurrection,  to  comply  with  the  laws  of  the  United 
States,  is  a  'sedition  law,'  and  the  chief  of  this  party 
treats  it  with  contempt;  yet,  under  the  very  same 
clause  of  the  Constitution  which  warranted  this  im- 
portant bill,  you  derive  your  power  to  punish  offences 
against  the  laws  of  nations.  Under  this  warrant  you 
have  tried  and  punished  our  citizens  for  [meditating 
the  invasion  of  foreign  States ;  you  have  stopped 
illegal  expeditions,  you  have  denounced  our  citizens 
as  pirates,  and  commended  them  to  the  bloody  ven- 
geance of  a  merciless  enemy. 

"Under  this  principle  alone  you  protect  our  weaker 
neighbors  of  Cuba,  Honduras,  and  Nicaragua.  By 
this  alone  are  we  empowered  and  bound  to  prevent 
our  people  from  conspiring  together,  giving  aid,  giv- 
ing money,  or  arms,  to  fit  out  expeditions  against 


212  A  STUDY  IN 

any  foreign  nation.  Foreign  nations  get  the  bene- 
fit of  this  protection ;  but  we  are  worse  off  in  the 
Union  than  if  we  were  out  of  it.  Out  of  it  we  should 
have  the  protection  of  the  neutrality  laws.  E^ow  you 
can  come  among  us ;  raids  may  be  made ;  you  inay 
put  the  incendiary's  torch  to  our  dwellings,  as  you 
did  last  summer,  for  hundreds  of  miles  on  the 
frontier  of  Texas ;  you  may  do  what  John  Brown  did, 
and  when  the  miscreants  escape  to  your  States,  you 
will  not  punish  them ;  you  will  not  deliver  them  up. 
Therefore,  we  stand  defenceless.  We  must  cut  loose 
from  the  accursed  'body  of  this  death,'  even  to  get 
the  benefit  of  the  law  of  nations. 

"You  will  not  regard  confederate  obligations ;  you 
will  not  regard  constitutional  obligations;  you  will 
not  regard  your  oaths.  Wliat,  then,  ataa  I  to  do  ? 
Am  I  a  freeman  ?  Is  my  State  a  free  State  ?  We  are 
freemen.  We  have  rights ;  I  have  stated  them.  We 
have  wrongs ;  I  have  recounted  them.  I  have  demon- 
strated that  the  party  now  coming  into  power  has 
declared  us  outlaws,  and  is  determined  to  exclude 
thousands  of  millions  of  our  property  from  the  com- 
mon Territories;  that  it  has  declared  us  under  the 
ban  of  the  Union,  and  out  of  the  protection  of  the 
laws  of  the  United  States  everywhere.  They  have 
refused  to  protect  us  fro^in  invasion  and  insurrection 
by  the  Federal  power,  and  the  Constitution  denies 
to  us  in  the  Union  the  right  either  to  raise  fleets  or 
armies  for  our  defence.  All  these  charges  I  have 
proven  by  the  record;  and  I  put  them  before  the 


STATE  RIGHTS  213 

civilized  world,  and  demand  tlie  judgment  of  to-day, 
of  to-morrow,  of  distant  ages,  and  of  heaven  itself, 
upon  the  justice  of  these  causes.  I  am  content,  what- 
ever it  be,  to  peril  all  in  so  noble,  so  holy  a  cause. 
We  have  appealed,  time  and  time  again,  for  these 
constitutional  rights.  You  have  refused  them.  We 
appeal  again.  Restore  us  these  rights  as  we  had 
ihem,  as  your  court  adjudges  them  to  he  just,  as  our 
people  have  said  they  are;  redress  these  -flagrant 
ivro7igs,  seen  of  all  men,  and  it  ivill  restore  fraternity, 
and  peace,  and  unity  to  all  of  us.  Refuse  them,  and 
what  then  ?  We  shall  then  ask  you,  'Let  us  depart 
in  peace.'  Refuse  that,  and  you  present  us  war. 
We  accept  it;  and,  inscribing  upon  our  banners  the 
glorious  words,  'Liberty  and  Equality!'  we  will  trust 
to  the  blood  of  the  brave,  and  the  God  of  battles,  for 
security  and  tranquillity."* 

*  See  Congressional  Globe ,  7th  of  January,  1861. 


A  STUDY  m 


CHAPTER  VII 

CONCLUSION 

Dr.  Curry  says  in  the  Civil  History  of  the  Con- 
federate States:  "One  of  the  most  singular  illus- 
trations ever  presented  of  the  power  of  literature  to 
conceal  and  pervert,  to  modify  and  falsify  history, 
to  transfer  odium  from  the  guilty  to  the  innocent, 
is  found  in  the  fact  that  the  reproach  of  disunion  has 
been  shipped  from  the  shoulders  of  the  North  to 
those  of  the  South."  It  has  been  said,  aye,  written, 
in  the  historical  books,  and  put  in  the  hands  of  the 
young  people  of  the  South,  that  their  fathers  were 
rebels,  that  they  were  traitors,  that  they  conspired 
to  destroy  the  Union.  Let  shame,  eternal  shame, 
rests  upon  the  memory  of  that  Virginian  who  quietly 
permits  such  stuff  as  this  to  be  taught  to  his  chil- 
dren, and  will  not  give  the  truth  of  history  to  those 
who  seek  it.  If  the  men  of  Virginia  who  in  1861 
responded  to  her  Governor's  call  to  defend  her  from 
the  usurper's  invasion  were  rebels,  why  not  teach 
our  children  against  what  did  their  fathers  rebel  ? 
If  the  federal  government  was  over  the  States,  and  a 
State  refused  to  obey  the  commands  thereof,  then 
very  properly  such  conduct  could  be,  and  ought  to 
be,  termed  "rebellious."    But  in  our  study  we  have 

214 


STATE  EIGHTS  215 

seen  that  the  States  in  the  exercise  of  their  sovereign 
righis  instituted  a  government  between  the  States, 
and  all  the  power  or  authority  of  the  federal  govern- 
ment was  delegated  by  the  acts  of  the  States,  to  be 
exercised  between  the  States  for  their  good  and  peace 
— some  of  the  States,  in  consenting  to  these  dele- 
gated powers,  specifying  that  if  these  delegated 
powers  were  used  by  the  federal  government  to  their 
injury,  so  far  as  they  were  concerned  these  powers 
were  recalled. 

He  is  a  rebel  who  resists  constituted  authority  and 
imlawfully  levies  war  against  that  authority.  Now, 
against  what  constituted  authority  did  Virginia 
rebel?  The  federal  government  had  authority  only, 
in  the  things  specified  in  the  Constitution.  The 
federal  government  had  authority  to  carry  out  by 
force  the  things  granted  in  the  Constitution ;  to  under- 
take by  force  to  do  things  not  granted,  was  violating 
the  Constitution.  Now,  can  it  be  shown,  can  it 
Avith  truth  be  said,  that  Virginia  or  any  Southern 
State  ever  demanded  anything  apart  from  the  Con- 
stitution ?  Can  it  be  demonstrated  that  any  South- 
ern State  demanded  any  change  in  the  Constitution  ? 
It  is  a  matter  clearly  seen  that  all  they  demanded 
was  a  guarantee  that  those  who  had  come  in  power 
would  administer  the  government  according  to  the 
Constitution.  When  this  was  refused,  in  the  exer- 
cise of  the  same  soveregnty  authority  by  which  they 
had  agreed  to  the  Constitution,  and  in  the  same  way, 
they  announced  they  would  no  longer  agree  to  that 


216  A  STUDY  IJST 

bond  of  union.  It  was  not  a  national  authority  ttey 
refused  to  obey ;  but  a  federal  government,  a  govern- 
ment by  agreement,  tbey  determined  no  longer  to 
regard.  And  tbis  act  of  Virginia  is  termed  treason. 
He  who  creates  is  always  greater  tban  bis  creation. 
It  is  the  logic  of  common  sense  in  the  question, 
Shall  the  thing  formed  say  to  the  one  that  formed  it, 
How  dare  you  do  this?  etc.  It  is  everlastingly  pre- 
sumptuous for  the  creature  to  assume  to  assert 
authority  over  the  creator. 

The  federal  government  is  the  creature  of  the 
sovereign  power  of  the  States;  it  is  a  government 
that  has  no  authority  except  that  granted  in  the 
written  agreement  between  the  States.  !N'ow,  when 
the  federal  government  assumes  authority  in  things 
not  delegated,  can  it  truthfully  be  said,  if  one  or 
several  of  the  powers  that  created  the  federal  govern- 
ment object,  aye,  resist  the  exercise  of  authority  not 
given,  that  this  is  treason?  Can  it  truthfully  be 
said  that  those  several  States  are  in  rebellion?  Re- 
bellion is  the  resistance  of  rightful  authority.  It  was 
the  usurpation  of  power  that  Virginia  and  the  South- 
ern States  confederated  to  resist.  It  can  never  be 
truthfully  written  that  they  united  to  resist  or  over- 
throw rightful  authority.  They  simply  said  to  the 
federal  government.  Unless  you  give  some  additional 
guarantee  that  hereafter  you  will  keep  your  obliga- 
tion we  will  have  nothing  more  to  do  with  you. 

Fifteen  of  the  States  had  openly  and  repeatedly 
refused  to  keep  their  obligation  under  the  Constitu- 


STATE  RIGHTS  21Y 

tion.  If  thej  believed  that  slavery,  as  recognized  by 
the  Constitution,  was  wrong,  they  ought  not  to  have 
sworn  allegianoe  to  that  Constitution,  ought  not  to 
have  sworn  as  they  did  to  uphold  that  Constitution,  and 
then  violate  their  oaths.  Virginia  and  the  Southern 
States  confederated  to  maintain  constitutional  liberty. 
It  can  never  be  shown  that  they  conspired  to  over- 
throw the  federal  government.  It  can  be  shown  that 
they  armed  themselves  and  fought  to  resist  the  exer- 
cise of  authority  never  granted.  The  battle  fought 
by  the  South  was  for  liberty  according  to  the  Con- 
stitution, and  can  never  truthfuJly  be  said  to  resist 
authority  over  them  (the  States). 

Now  what  do  we  mean  by  sovereignty  ?  We  must 
all  admit  to  resist,  to  refuse  to  obey,  to  fight  against 
supreme  authority,  is  rebellion.  Did  the  people  of 
the  South  do  this  thing  ?  If  the  federal  government 
was  a  government  over  the  State  governments,  then 
the  States  rebelled.  If  it  was  not  a  government 
over  the  government  of  the  States,  but  as  defined  by 
the  instrument  that  gave  it  its  existence,  it  was  a 
government  between  the  States.  The  inference  from 
this  fact  is  to  write  as  historically  true  that  Virginia 
and  her  Southern  State  associates  rebelled  in  what 
they  did  is  to  record  what  is  absolutely  untrue.  The 
Virginian  who  was  found  with  arms  in  his  hand  re- 
sisting the  mandates  of  Virginia  is  the  only  one  who 
can  be  truthfully  recorded  as  a  rebel.  Why  ?  Be- 
cause he  is  the  one  contending  against  rightful, 
sovereign  authority  of  his  citizenship.     The  sover- 


218  A  STUDY  11^ 

eigntj  of  Virginia  was  the  only  authority  over  him, 
for  if  the  federal  government  was  never  over  the 
State,  but  only  between  his  State  and  other  States, 
with  specified  powers,  then  there  could  be  no  alle- 
giance to  the  federal  government  which  dissolved 
his  obligations  to  his  sovereign,  the  State  of  Vir- 
ginia. To  refuse  obedience  to  the  command  of  the 
sovereign,  to  resist  and  to  fight  against  the  orders  of 
the  sovereign,  is  rebellion. 

Every  student  of  the  nature  of  the  government 
of  the  United  States  perceives  that  a  citizen  of  Vir- 
ginia becomes  a  citizen  of  the  United  States  by  the 
sovereign  act  of  Virginia,  and  that  sovereign  act  de- 
clared by  the  expressed  will  of  the  people  of  Vir- 
ginia. The  fact  of  sovereignty  is  not  in  the  power 
of  the  government  organized,  but  in  the  authority 
that  organized  the  government,  i.  e.,  the  people  of 
the  State.  They  are  sovereign  in  each  State,  and 
why?  Because  back  of  them  there  is  no  authority 
to  which  they  are  responsible. 

When  it  can  be  shown  that  Virginia  and  her  sister 
States,  in  agreeing  to  the  form  of  government  called 
the  Federal  Government,  agreed  that  the  government 
was  national  in  its  nature  and  functions,  and  that 
having  agreed  to  the  paramount  authority  of  that 
government  she  subsequently  resisted,  tried  to  over-- 
throw  that  government,  it  may  be  written  that  "Vir- 
ginia rebelled."  But  until  that  can  be  written  from 
the  records  in  the  case,  it  is  false  to  record  as  "rebel- 
lion" the  act  of  Virginia  in  withdrawing  from  the 


STATE  EIGHTS  219 

Government  of  the  United  States.  In  the  exercise  of 
her  sovereign  authority — which  was  recognized  by 
the  nations  of  the  earth — for  her  good  she  consented 
to  enter  (as  Massachusetts  in  convention  assembled 
declared)  the  compact  of  the  United  States.  When 
she  discovered  that  it  was  not  for  her  good  to  re- 
main in  the  compact,  she  withdrew  from  it  and 
called  upon  her  sons  to  defend  her  in  the  exercise 
of  her  sovereign  rights.  It  is  everlastingly  untrue 
to  record  that  she  aimed  to  destroy  and  overthrow  the 
federal  government.  ISTeither  must  it  be  written  that 
the  sons  of  Virginia  and  her  associate  States  of  the 
South  were  guilty  of  the  act  of  treason.  I  here  ask 
the  earnest  thought  of  every  unbiased  mind  and  beg 
all  who  love  truth  for  truth's  sake,  to  weigh  care- 
fully the  facts  bearing  on  this  phase  of  the  question. 
jSTow  we  find  it  written  in  the  books  called  "Histories 
of  the  United  States"  that  Mr.  Davis  was  a  traitor ; 
that  all  who  were  united  with  him  in  his  contention 
against  the  federal  government,  as  administered  by 
Mr.  Lincoln  and  his  associates  from  1861,  were 
guilty  of  the  crime  of  treason.  Wliat  is  meant  by 
this  statement — in  other  words,  what  is  treason,  and 
what  was  there  in  the  conduct  of  Mr.  Davis  and  hi3 
confederates  that  has  permitted  and  gives  the  right 
to  historians  to  record  such  as  a  fact?  The  Con- 
stitution says.  Article  III,  Section  3 :  "Treason 
against  the  United  States  shall  consist  only  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.     No  person  shall  be 


220  A  STUDY  IN 

convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in 
open  court"  The  conduct  of  Mr.  Davis  and  his 
people  must  be  tried  by  this  definition  of  the  crime 
of  treason.  If  they  did  as  a  citizen  of  any  State  in 
the  Union  what  is  herein  specified  as  the  nature  of 
this  crime,  they  were  imqestionably  guilty.  If  what 
they  did  was  done  as  citizens  of  a  State  not  in  the 
compact  of  the  Union,  they  were  not  guilty. 

It  will  ever  appear  as  a  marvelous  thing  in  the 
behavior  of  the  reputed  lovers  of  the  Union  that  they 
never  brought  Mr.  Davis  to  a  jvidicial  trial  to  estab- 
lish the  fact  of  their  accusation  of  this  heihous 
crime.  He  was  in  their  power.  He  most  earnestly, 
at  the  conclusion  of  the  contest  of  four  year  which 
he  and  his  associates  waged  in  the  spirit  of  heroism 
the  like  of  which  the  world  never  saw,  pleaded  with 
them  to  bring  him  to  trial.  It  will  not  do  to  say 
they  were  weary  of  the  spirit  that  engendered  strife, 
for  from  their  religious  sanctuaries  and  ecclesiasti- 
cal assemblies,  their  legislative  halls  and  parlia- 
mentary meetings,  they  poured  forth  such  malignant 
and  bitter  acts  that  their  effect  died  and  ceased  only 
with  the  generation  of  that  day.  They  had  Mr.  Davis 
shut  up  in  a  dungeon  and  his  emaciated  limbs  man- 
acled in  iron  bands  in  a  spirit  of  barbarism  that 
would  have  delighted  a  Sioux  chief,  and  yet  they  re- 
fused by  due  process  of  Jaw  to  make  good  their  accu- 
sation of  treason.  What  must  the  student  of  history 
infer  to  be  the  meaning  of  such  behavior?     The 


STATE  EIGHTS  221 

question  blazes  out  with  fierce  and  burning  em- 
phasis,  Wliy  did  they  not  bring  Mr.  Davis  to  that 
speedy  trial  which  their  constitutional  law  required, 
and  which  their  victim  repeatedly  urged  ?  From  an 
earnest  study  of  the  question  I  submit  that  they 
knew  that  Jeiferson  Davis  would  have  won  in  the 
forum  of  justice  that  which  he  could  not  establish 
on  the  battlefield  with  600,000  patriotic  soldiers 
against  2,700,000,  viz.,  the  righteousness  of  his  and 
his  countrymen's  cause. 

Mr.  Davis  and  every  citizen  of  Mississippi  owed 
allegiance  to  the  State  of  Mississippi.  Their  State 
formally  and  officially  announced  the  withdrawal  of 
her  citizens  from  the  bonds  of  the  Federal  Govern- 
ment by  virtue  of  the  fact  of  allegiance  to  their 
sovereign.  When  she  withdrew  from  the  Union,  she 
took  them  with  her.  In  the  nature  of  the  case  they 
could  have  been  guilty  of  treason  only  if  they  were 
found  with  arms  in  their  possession  resisting  the 
commands  of  their  sovereign,  i.  e.,  their  State.  It 
does  not  change  the  case  to  say  "that  the  Constitu- 
tion is  the  supreme  law  of  the  land,"  and  must  there- 
fore be  obeyed,  for  the  Constitution  ceased  to  be 
the  supreme  law  when  the  State  retired  and  dis- 
solved its  relation  in  the  bond  made  by  the  Constitu- 
tion. If  a  State  had  the  right  for  cause  to  constitute 
the  relation  by  acceding  to  the  Constitution,  what 
deprived  her  of  the  right  to  dissolve  that  relation 
for  cause  ? 

Once  during  the  war  I  knew  of  an  officer  in  the 


222  A  STUDY  IN 

Federal  army  who  resigned  his  conunission  rather 
than  ohej  the  orders  of  his  superior  officer.  His  re- 
fusal of  obedience  was  not  punished,  and  his  resigna- 
tion was  accepted.  His  right  to  resign  was  respected, 
and  he  was  relieved  of  the  duty  of  his  obligation  to 
obey.  Will  you  deny  to  many  the  privilege  granted 
to  one  ?  When  the  State  of  Virginia,  Mississippi, 
or  any  State  declared  she  retired  from  the  bond  of 
union,  the  Constitution  ceased  to  be  the  supreme 
law  to  her  citizens,  and  the  commands  of  these  States 
to  their  people  was  the  only  supreme  law  for  them. 
It  was  possible,  therefore,  for  that  one  only  to  be  a 
rebel  who  refused  to  obey  the  mandates  of  his  State, 
and  he  only  could  be  recorded  as  a  traitor  who  was 
found  levying  war  against  his  State. 

When  Robert  E.  Lee  sheathed  his  stainless  sword 
on  the  field  of  Appomattox,  the  Declaration  of  Inde- 
pendence was  repudiated  and  constitutional  liberty 
died,  crushed  under  the  heel  of  overwhelming  num- 
bers, and  the  proud  heritage  of  our  fathers  had  be- 
come a  government  administered  at  the  dictates  of  a 
remorseless  majority;  and  he  who  fails  to  see  it  is 
laboring  under  that  sad  delusion  which  compels  him 
to  believe  what  is  false.  In  the  law  defining  the 
nature  of  treason,  and  in  the  conduct  of  the  South- 
ern States,  nothing  can  be  found  to  show  that  there 
was  either  treason  or  rebellion. 

Just  here  another  question  presents  itself:  Who 
began  the  war  ?  Are  there  any  facts  to  show  that 
the  Southern  States,  singly  or  united  in  confederacy, 


STATE  EIGHTS  223 

inaugurated  the  war  ?  True,  the  States  of  the  South 
armed  themselves.  Why  ?  To  repel  the  force  threat- 
ening to  coerce  them, — never  to  assail  the  United 
States  Government  if  they  \<ere  not  invaded.  It  is 
true  the  South  fired  the  first  gun ;  but  it  is  also  true, 
as  Hallam  says  {Constitutional  History  of  England, 
vol.  ii,  p.  219)  :  "The  aggressor  in  war,  i.  e.,  he  who 
begins  it,  is  not  the  first  who  uses  force,  but  the  first 
who  renders  force  necessary." 

When  Mr.  Lincoln  sent  out  from  Kew  York  and 
I^orfolk  the  relief  squadron  consisting  of  eleven  ships, 
carrying  285  guns  and  more  than  2,000  men,  with 
orders  to  re-enforce  Fort  Sumter  peaceably,  if  per- 
mitted,— "but  forcibly  if  they  must," — ^who  was  the 
aggressor?  We,  in  our  study  of  the  question,  might 
go  further  and  say  that  Mr.  Lincoln's  proclamation  of 
April  15,  1861,  was  an  open  declaration  of  war.  He 
says  by  virtue  of  the  authority  given  him  in  the 
Constitution — ^he  is  the  only  one  who  ever  foimd 
that  authority  in  the  Constitution — ^he  issued  that 
proclamation. 

In  1832,  when  the  question  of  nullification  was 
agitating  the  public  mind,  Mr.  Daniel  Webster,  in 
an  address  delivered  to  a  convention  of  his  party 
(the  Whigs)  at  Worcester,  Mass.,  isays :  "ISTow,  sir, 
I  think  it  exceedingly  probable  that  the  President 
may  come  to  an  open  rupture  with  that  portion  of 
his  original  party  which  now  constitutes  what  is 
called  the  ISTullification  Party.  I  think  it  likely  he 
will  oppose  the  proceedings  of  that  party  if  they  shall 


224  A  STUDY  IN" 

adopt  measures  coming  directly  in  conflict  with  the 
laws  of  the  United  States,  but  how  will  he  oppose  ? 
Sir,  for  one,  I  protest  in  advance  against  such  reme- 
dies as  I  have  heard  hinted.  The  administration  it- 
self keeps  a  profound  silence,  but  its  friends  have 
spoken  for  it.  We  are  told,  sir,  that  the  President 
will  immediately  employ  the  military  force,  and  at 
once  blockade  Charleston.  A  military  remedy,  a 
remedy  by  direct  belligerent  operation,  has  been  thus 
suggested,  and  nothing  else  has  been  suggested,  as 
the  intended  means  of  preserving  the  Union.  Sir, 
there  no  little  reason  to  think  that  this  suggestion 
is  true.  We  cannot  be  altogether  unmindful  of  the 
past,  and  therefore  we  cannot  be  altogether  unappre- 
hensive for  the  future.  For  one,  sir,  I  raise  my 
voice  beforehand  against  the  unauthorized  employ- 
ment of  the  military  power,  and  against  superseding 
the  authority  of  the  laws  by  an  armed  force  under 
pretence  of  putting  down  nullification.  The  Presi- 
dent has  no  authority  to  blockade  Charleston;  the 
President  has  no  authority  to  employ  military  force 
until  he  shall  be  duly  required  to  do  so  by  law  and 
by  the  civil  authorities.  His  duty  is  to  cause  the 
laws  to  be  executed.  His  duty  is  to  support  the  civil 
authority.  His  duty  is,  if  the  laws  be  resisted,  to  em- 
ploy the  military  force  of  the  country,  if  necessary, 
for  their  support  and  execution ;  but  to  do  all  this  in 
compliance  only  with  law  and  with  decisions  of  the 
tribunals."  [Worhs  of  Daniel  Webster,  vol.  i,  p. 
273.) 


STATE  EIGHTS  225 

When  we  remember  that  the  President  was  by  his 
oath  of  office  obligated  to  uphold  and  carry  out  the 
things  stipulated  in  the  Constitution,  and  not  re- 
quired to  preserve  by  force  the  union  of  States,  Mr. 
Lincoln,  in  his  conduct  and  in  the  proclamation  he 
issued,  can  never  be  justified.  He  was  the  aggressor. 
Under  the  supposition  that  the  Southern  States  were 
conspiring  to  take  the  Capital  City,  he  gathered  a 
mighty  host.  He  armed  and  marched  that  host  into 
Virginia,  with  the  purpose  of  compelling  that  Com- 
monwealth to  yield  to  the  administration  of  the 
federal  government  as  a  strong  national  government 
to  which  Virginia  and  her  associate  States  of  the 
South  had  declared  they  would  not  submit.  He  had 
just  as  much  right  to  do  what  he  did  as  Mr.  Wash- 
ington would  have  had  to  compel  Rhode  Island  and 
North  Carolina  to  accede  to  the  union  of  States.  For, 
if  it  is  lawful  to  prohibit  secession  from  a  voluntary 
covenant,  from  the  same  process  of  reasoning  it  could 
not  be  judge  unlawful  to  demand  by  force  accession 
to  a  covenant. 

Such  indeed  is  the  principle  of  the  government  of 
the  United  States  to-day.  It  is  no  longer  a  govern- 
ment by  consent  of  the  governed.  So  long  as  the 
Star  Spangled  Banner  waves  where  the  bayonets  of 
the  army  place  it,  it  cannot  be  said  to  be  the  banner 
of  the  free.  When  the  Confederate  army  yielded  to 
overwhelming  numbers  the  Declaration  of  Indepen- 
dence ceased  to  be  the  principles  upon  which  our 
government  rests.    As  a  matter  of  history  the  federal 


226  A  STUDY  IN 

government  is  interesting,  but  as  a  government  of  a 
free  people  has  ceased  to  be  operative.  It  is  abso- 
lutely unreconci liable  with  Mr.  Lincoln's  Gettys- 
burg speech. 

Let  us  put  in  a  few  -words  the  conclusion  of  this 
study : 

1.  The  government  of  the  United  States  is  federal 
in  its  nature,  and  in  no  sense  was  it  ever  by  any 
act  of  the  ''fathers"  that  formed  the  Constitution 
to  be  regarded  as  a  national  government.  On  the 
contrary,  by  the  unanimous  vote  of  the  convention 
the  word  ^'nation"  and  the  idea  of  nationality  was 
stricken  out. 

2.  The  federal  government  is  not  a  government 
over  the  States,  but  betiueen  the  States.  It  is  a 
government  instituted  by  the  States,  in  the  exercise 
of  their  free  sovereign  and  independent  rights.  It 
is  the  creature.  The  States  are  the  creator;  because 
the  creature  is,  we  must  not  infer  the  creator  cease  to 
be.  To  exercise  the  function  of  the  creator  is  usurpa- 
tion in  the  creature.  The  creator  can  never  be  sub- 
ject to  any  demand  of  the  creature,  except  in  the 
things  specified  in  the  covenant. 

3.  Since  the  federal  government  is  one  between 
the  States,  and  not  over  them,  to  resist  the  federal 
government  in  the  exercise  of  powers  not  delegated 
can  in  no  sense  and  at  no  time  be  termed  "rebellion." 
To  demand  that  the  federal  government  shall  adhere 
to  the  function  assigned  in  the  bond  of  union  can 


STATE  EIGHTS  227 

never  be  properly  and  truthfully  designated  a  "con- 
spiracy." 

When  Mr.  Davis  and  his  associates  armed  them- 
selves, it  was  not  to  overthrow  the  Government  of 
the  United  States,  but  to  defend  themselves  against 
any  effort  of  that  party  administering  the  federal 
government  to  compel  them  to  do  what  they  knew  the 
Constitution  did  not  obligate  and  require  them  to  do. 


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